IVJU>     c'v-s'V'  --^—  .  w*-  > 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


J 


vCc^^.-^ 


THE 


LAW  OF  CONTRACTS, 


JOHN  WILLIAM  SMITH,  Esq., 

LATE  OF  THE  INNER  TEMPLE,  BARRISTER-AT-LAW, 
AUTHOR   OP    "leading   CASES,"    "A   TREATISE   ON   MERCANTILE   LAW,''    ETC. 


FROM  THE  SIXTH  LONDON  EDITION, 


BY  ^ 

VINCENT  T.  THOMPSON,  Esq.,  M.A., 

OF  Lincoln's  inn,  and  of  the  midland  circuit,  barrister-at-law. 


NOTES    AND    REFERENCES    TO    BOTH    ENGLISH    AND    AMERICAN 

DECISIOXS, 

By  WILLIAM  HENRY  RAWLE. 

and  ■with 

ADDITIONAL  NOTES  AND  REPERENCES  TO  RECENT  AMERICAN 

CASES, 

By  GEORGE  SHARSWOOD,  LL.D. 


PHILADELPHIA:  " 
T.  &  J.  W.  JOHNSON  &  CO. 

535   Chestnut    Street. 

1878. 


\ 


Entered  according  to  Act  of  Congress,  in  the  year  1877,  bj 

T.  &  J.  W.  JOHNSON  &  CO., 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


PUESS  OP    HENRY   B.   ASHMEAD, 
1102  &  1104  Sansom  Street. 


5 

I 


i 


ADVERTISEMENT 


TO    THE    SIXTH    AMERICAN    EDITION, 


The  present  has  been  printed  from  the  last  (sixth) 
English  edition,  in  which  the  substance  of  the  English 
notes  to  the  former  editions  has  been  incorporated  with 
the  text.  Much  new  matter,  comprising  the  most 
recent  statutes  and  the  latest  decided  cases,  has  been 
added.  The  full  and  able  notes  of  the  former  American 
editor  have  been  retained ;  the  work  of  the  present 
editor  having  been  to  re-arrange  these  notes,  so  as  to 
accommodate  them  to  the  altered  arrangement  of  the 
work,  and  to  add  notes  and  references  to  later  American 
cases.  , 


G.  S. 


Philadelphia,  December,  1877. 


PREFACE 

TO    THE    SIXTH    LONDON    EDITION. 


In  bringing  this  Edition  of  Smith's  Lectures  on  the 
Law  of. Contracts  up  to  the  existing  state  of  the  law, 
the  present  Editor  has  endeavored  to  make  his  own 
additions  as  short  as  possible,  and  to  insert  such  cases 
only  as  seemed  to  illustrate  a  principle,  or  to  have  some 
important  efiect.  He  trusts  that  while  laboring  to  ,be 
brief,  he  has  not  become  obscure,  and  that  the  present 
Edition  will  be  found  not  unworthy  of  its  predecessors. 

It  may  be  interesting  to  add  that,  as  appears  from 
the  preface  to  the  First  J^dition,  these  lectures  were 
delivered  at  the  Law  Institute  in  184i;;  at  which  time 
the  Author  was  thirty-three  years  old  {vide  the  inter- 
esting memoir  of  the  late  John  William  Smith,  by 
Samuel  Warren,  Esq.,  Q.C.,  in  BlacJcivood,  vol.  61). 
The  First  Edition  was  brought  out  in  1846,  after  the 
Author's  death,  b}^  Mr.  Jelinger  C.  Symons.  The  sub- 
sequent editions  up  to  the  present  one  were  by  the 
late  Mr.  J.  G.  Malcolm,  formerly  Master  of  the  Crown 

Office. 

V.  T.  T. 

Pease's  Buildings,  South  Parade,  Leeds. 


CONTENTS. 


LECTURE  I. 


PAGE 


ON    THE   NATURE  AND    CLASSIFICATION   OF  CONTRACTS,  AND    ON 

CONTRACTS   BY    DEED, 1 

LECTURE  II. 

THE  NATURE  OF  SIMPLE  CONTRACTS; OF  WRITTEN  CON- 
TRACTS;— THE    STATUTE   OF   FRAUDS,  .  .  .  .38 

LECTURE  III. 

THE  FOURTH  SECTION  OF  THE  STATUTE  OP  FRAUDS. — PRO- 
MISES BY  EXECUTORS  AND  ADMINISTRATORS. — GUARAN- 
TIES.— MARRIAGE  CONTRACTS. — CONTRACTS  FOR  THE  SALE 
OF  LANDS. — AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A 
YEAR, 92 

LECTURE  IV. 

SALE  OF  GOODS,  ETC.,  UNDER  THE  SEVENTEENTH  SECTION  OF 
THE  STATUTE  OF  FRAUDS. — CONSIDERATION  OF  CONTRACTS 
BY   DEED    AND    OF    SIMPLE   CONTRACTS,       .  .  .  .    12S 

LECTURE  V. 

CONSIDERATION  OF  SIMPLE  CONTRACTS. — EXECUTED  CONSIDER- 
ATIONS  WHERE  EXPRESS    REQUESTS    AND    PROMISES  ARE 

OF     AVAIL  — MORAL     CONSIDERATIONS.  —  ILLEGAL     CON- 
TRACTS.— RESTRAINTS    OF   TRADE, 168 

LECTURE  VI. 

ILLEGAL    CONTRACTS. — FRAUD. — GAMING    AND    HORSE-RACING. 

— WAGERS,        .  .  . 218 


Vlll  CONTENTS. 

LECTURE  VII. 

PAGE 

THE    lord's    day    ACT. — SIMONY. — BILLS    OF    EXCHANGE    FOR 

ILLEGAL    CONSIDERATION. RECOVERY  OP  MONEY  PAID  ON 

ILLEGAL    CONTRACTS, 253 

LECTURE  VIII. 

PARTIES     TO    CONTRACTS. — WHO    ARE     INCOMPETENT     TO    CON- 
TRACT.— INFANTS. — WIVES, 281 

LECTURE  IX. 

PARTIES     TO     CONTRACTS.  —  INSANE    PERSONS. — INTOXICATED 

PERSONS. ALIENS. — CORPORATIONS. — PUBLIC  COMPANIES. 

— THE    MODE    IN   WHICH    COMPETENT   PERSONS    CONTRACT. 

— AGENTS. — PARTNERS, 318 

LECTURE  X. 

PRINCIPAL    AND    AGENT. — THEIR    RESPECTIVE    LIABILITIES. — 
AGENCY   OP   BROKERS,    FACTORS,    PARTNERS,    WIVES. — RE- 

,  CAPITULATION. — REMEDIES    BY    ACTION. STATUTES    OF 

LIMITATION — CONSTRUCTION   OP    CONTRACTS,      .  .  .    39-4 


_^ 


TABLE  OF  CASES 

CITED  IN  THE  TEXT. 


PAGB 

Abbott  V.  Rogers, 

231 

Abel  V.  Sutton, 

422 

Abrey  v.  Crux, 

42 

Adams  v.  Bankart,    . 

414 

V.  Dansey, 

97 

V.  Lindsell,    . 

148 

149 

V.  Wordley,    . 

42 

Addison  v.  Gandasequi, 

402 

403 

Alcenius  v.  Nj^grin,  . 

221 

330 

Alchin  V.  Hopkins,    . 

266 

Alexander  v.  Sizer,  . 

363 

Allsopp  V.  Wheatcroft, 

203 

Allen  V.  Kemble, 

328 

Ambrose  v.  Harrison, 

442 

Anderson  v.  Radcliffe, 

219 

Anon.  (Godb.), 

392 

Ansell  V.  Baker, 

28 

Applegarth  v.  Colley, 

242 

Archer  v.  Baynes, 

133 

V.  Marsh, 

165 

209 

Arkwright  v.  Cantrell, 

217 

Armstrong  v.  Stokes,     40 

4,  406, 

409, 
410 

Arnold  v.  Mayor  of  Poole, 

333 

Ashby  V.  James, 

478 

Ashcroft  V.  Morrin,   . 

136 

Ashfield  V.  Ashfield, 

300 

Ashmole  v.  Wainwright, 

218 

Aspitel  V.  Bryan, 

27 

Astley  V.  Manchester,  She 

ffield," 

and  Lincolnshire  Rail.  ( 

Do.,   . 

360 

Athenffium  Life  Assuranc( 

i  Co., 

in  re, 

376 

Atkins  V.  Banwell,    . 

186, 

187 

Atkinson  v.  Bayntun, 

169 

V.  Denb}-,  . 

277 

Atkyns  v.  Kinnier,    . 

204 

Atlee  V.  Backhouse,  . 

171 

Attorney-General    v.    Ho 

ling- 

worth,    . 

214 

Australasia,  Bank  of,  v. 

3reil- 

lat,          .         .         .         . 

355 

Australian  Royal    Mail   S 

team 

Navigation  Company  v. 

Mar- 

zetti,      .         .         .         . 

340 

Aveline  v.  Whisson, 
Avery  v.  Langford, 
Ayliffv.  Archdale, 


PAGE 

5 
205 
296 


Bagshaw  v.  Bosley,  . 
Bahia,  etc..  Rail.  Co.,  in  re. 
Bailey  v.  Sweeting,  .  .  130, 
Bainbridge  v.  Firmstone, .  163, 
Baines  v.  Ewing, 
Baker  v.  Rogers, 

V.  Townsend,  . 
V.  Walker, 
V.  White, 
Bamfield  v.  Tupper,  . 
Barden  v.  Keverberg, 
Barker  v.  Allan, 

V.  St.  Quintin, 
Barkworth  v.  Young, 

ex  parte,  re  Har 
Barley  v.  Walford,     . 
Barnes  v.  Pennell, 
Barry  v.  Nesham, 
Bartlett  i'.  Viner, 

V.  Wells,       . 
Barton  v.  Fitzgerald, 

V.  Gainer, 
Batard  «.  Hawes, 
Batemaa    v.    Mid-Wales 
Co., 
V.  Finder, 
Batson  v.  King, 
Battersby  v.  Kirk, 
Battley  v.  Faulkner, 

V.  Lewis, 
Batty  V.  Marriott,      .      247,  248, 
Baumann  v.  James, 
Baxter  v.  Brown, 
V.  Nurse, 

V.  Earl  of  Portsmouth, 
Bayley  v.  Wilkins,     .        56,  177 
Bayliffe  v.  Butterworth,    56,  177 
Bazeley  v.  Forder,     . 
Beal  V.  South  Devon  Rail.  Co., 


17 
Rail 


469,  47 


263 

27 
137 
174 
389 
259 
216 
171 
210 
476 
310 

80 
4 
111 
427 
226 
226 
418 
229 
298 
506 

34 
182 

337 
476 

97 
463 
461 
420 
279 

82 
129 

67 
320 
387 
386  ' 
444 
175 


X 


TABLE    OF    CASES. 


PAGE 

Beale  v.  Moiils,  .         .         .     420 

Beard  v.  Webb,  .         .         .310 

Beauchamp  v.  Powley,  .  .  175 
Beaumont  v.  Reeves,  16,  187,  195 
Beavnn  v.  M'Donnell,  .  .  323 
Beckford  v.  Crutwell,  .  .  486 
Beckham  t;.  Drake,  .  38,412,421 
V.  Knight,  .  .  .  419 
Belford  Union  v.  Pattison,  .  427 
Belknap's  (Ladj)  case,  .  .  309 
Belshaw  2;.  Bush,  .  .  .171 
Belton  V.  Hodges,  .  .  .  297 
Bendis  v.  Wakeman,  .         .313 

Bendry  v  Price,  .  .  .  267 
Bennett  v.  Brumfitt,  ...  88 
Benson  v.  Paul,  .         .      447,  448 

Bentinck  v.  Connop,  .  .  .  242 
Benwell  v.  Inns,  .  .  .  200 
Besant  v.  Cross,  ...  42 
Betts  V.  Kimpton,  .  .  .  304 
Beverly  v.  Lincoln   Gas   Light 

Company,  .  .  .  .337 
Beyer  v.  Adams,  .  .  .271 
Biddlecombe  v.  Bond,  .  .  507 
Bidmead  v.  Gale,  .  .  .242 
Biffin  V.  Bignell,  .  .  .  440 
Bill  V.  Bament,  ...       89 

Birch  V.  Liverpool,  Earl  of,  .  124 
Bird  V.  Boulter,  .         .      132,  372 

V.  Gammon,        ...       97 
Birkenhead   Railway  Company 

V.  Pilcher,  .  .  .  .295 
Birkmyr  v.  Darnell,  ...  96 
Birmingham  Railway  Company 

ex  2)arte^  Capper,     .  .  .     148 

Bishop  V.  Elliott,  '  .  .  .255 
Blackett    v.   'Royal    Exchange 

Insurance  Co.,  ...  64 
Blagdon  v.  Bradbear,  .  .  77 
Blair  v.  Bromlej-,  .  .  .  456 
Blake's  case,  ....  29 
Blackmore  v.  Bristol  and  Exe- 
ter Railway,  .  .  .  .174 
Blaxton  v.  Pye,  .  .  .239 

Boaler  v.  Mayor,  ...  28 
Bolton  V.  Prentice,  .  .  .  439 
Bond  V.  Bell,  .  .  .  .238 
V.  Pittard,  .  .  .413 
Bone  V.  Ekless,  .         .         .279 

Bonfield  v.  Smith,  .  .  .  416 
Bosauquet  v.  Shortridge,       346,  347, 

349 
Bostock  V.  North  Staffordshire 

Railway  Company,  .  .  360 
Boulton  V.  Jones,  .  .  .  185 
Botcherby  v.  Lancaster,  .  .  7 
Bourdin  v.  Greenwood,  .  .  468 
Bourne  v.  Gatlitf,       .  .  .     486 

Bowes  V.  Foster,  ...  20 
Bowker  v.  Burdekin,  .         .       11 


PAGE 

Bowlby  V.  Bell,  .         .      129,348 

Bowman  v.  Taylor,  ...  20 
Bowry  v.  Bennett,  .  .  .  195 
Boyce  v.  Green,  .         .         .77 

Boydell  v.  Drummond,      .         .       84 
Bracegirdle  v.  Heald,         .         .     123 
Bradlaugh  v.  De  Rin,         .      328,  329 
Bradley  v.  Holdsworth,     .         .129 
Bradshaw  v.  Beard,  .         .         .     442 
Brady  v.  Tod,    ....     375 
Bramah  v.  Roberts,  .         .         .     353 
Brandon  v.  Nesbitt,  .         .         .     330 
V.  Old,         .         .         .325 
Brashford  v.  Buckingham,         .     312 
Brett  V.  Beckwith,     .         .         .     419 
Brettel  y.  Williams,  .         .         .     414 
Brewer  v.  Sparrow,  .         .         .391 
Bridges  v.  Fisher,      .         .         .     195 
Briggs    V.    Blerchant    Traders' 
Shipping  Assurance  Associ- 
ation,    ..... 
British    and    American     Tele- 
graph Co.  V.  Colson, 
British    Empire    Shipping    Co. 
r.  James,         .... 
British    Linen    Co.    v.    Drum- 
mond,   ..... 
Broad  v.  JoUyffe, 
Brody  v.  Tod,  see  Brady  v.  Tod. 
Brogden  v.  Marriott, 
Brook  V.  Brook, 
Brooker  v.  Scott, 
Broughton   v.  Manchester   and 
Salford    Waterworks     Com- 
pany,     .... 
Brown  v.  Ackroyd,    . 
V.  Byrne,         , 
V.  Crump, 

V.  Jodrell,      .         ,      321 
V.  Langley,    . 
V.  JIayor  of  London, 
Browning  v.  Morris,  . 
V.  Stallard, 
Brydges  v.  Lewis, 
Buckley,  ex  parte,  in  re  Clarke 
Buckmaster  v.  Russell, 
Bullock  V.  Dodds, 
Bunn  V.  Guy,"    .         .       158,  200 
Burgess  v.  Wickham, 
Burghart  v.  Hall, 
Burmester  v.  Norris. 
Burn  V.  Boulton, 
Burrowes  v.  Gore,     . 
Bush  V.  Bevan,  . 
V.  Martin, 
Butcher  v.  Steuart,    . 
Buttemere  v.  Hayes, 
Buxton  V.  Rust, 
Bwlch  y  Plwmhead  ^iining  Co 
V.  Baynes, 


250 
150 
185 

330 

198 

239 
328 
287 


337 
444 

59 

191 

,  322 

42 
237 
274 
102 

30 
423 
473 
331 
204 

47 
288 
355 
479 
460 
448 
471 

99 
118 
137 

226 


TABLE    OF    CASES. 


XI 


C. 


PAGE 

s,    .     218 

.     400 

171,  172 

322    323 

21,  22,  24 

.     397 

90,  111,  115 

.     248 

21,  22 


Cadaval,  Duke  de,  v.  Coll 
Calder  i\  Dobell, 
Callisher  v.  Bischoffsheim 
Calvin's  case,    . 
Campbell  v.  Hooper, 
Carpenter  v.  Buller,  . 
Carr  v.  HinchcliflF, 
Carrington  v.  Roots, 
Carter  v.  Boehm, 

V.  Carter, 
Caton  V.  Caton, 
Catt  V.  Tourle, 
Catterall  v.  Hindle,  . 
Cawthorn  v.  Cordrey, 
Central   Ry.  Co.  of  Venezuela 

V.  Kisch, 
Champion  v.  Plummer, 
Channel  v.  Ditchburn, 
Chaplin  v.  Clarke,     . 
Chappie  V.  Cooper,    . 
Cherry  v.  Heming,     . 
Chesman  v.  Nainby,  .      1 

Chrjstoffersen  v.  Hansen 
Church  V.  Imperial  Gas  Light 

Company,      .         .         .      336, 
Clarke  v.  Cuckfield  Union 

V.  Powell, 

w.  Roystone,  . 
Clay  V.  Yates,    . 
Clayton  v.  Gregson, 

V.  Lord  Nugent, 
Cleave  v.  Jones, 
Clenan  v.  Cooke, 
Clifford  V.  Burton, 
V.  Laton, 
Clutterbuck  v.  Coffin 
Coates  V.  Wilson, 
Cobb  V.  Becke, 
Cockerell  v.  Aucompte, 
Cockerill  v.  Sparke 
Cocking  V.  Ward, 
Cockran  v.  Islam, 
Cocks  V.  Nash,  . 

V.  Purday, 
Coggs  V.  Bernard, 
Colborne  v.  Stockdale, 
Colebrook  v.  Layton, 
Coleman  v.  Riches,   . 
Coles  V.  Bulman, 

V.  Hillme, 

V.  Strick, 
Collins  V.  Blantern,    17,  18,  1 


Collinson  v.  Margesson, 

CoUis  V.  Stack, 

Combe's  case,    . 

Connelly  v.  Connelly, 

Cooch  V.  Goodman,  . 

Cook  V.  Field,   .         .         .      250 


61 


199 
427 
123 

.  226 
.  135 
.  476 
.  148 
.  289 
5,  126 
)8,  200 
.  412 


337 
337 
425 

54 
195 
,  67 

46 
482 

77 
433 
440 
152 
287 
368 
390 
471 
118 
368 

29 
329 
174 

18 
267 
389 
184 
508 
224 
213, 
274 
474 
468 
368 
328 
5,  13 
251 


90 


Cook  V.  Wright, 
Cooke  V.  Clayworth, 
V.  Oxley, 
V.  Seeley, 
V.  Wilson, 
Coombs  V.  Dibble, 
Cooper  V.  Smith, 
Cope  V.  Albinson, 
V.  Rowlands, 


PAGE 

158,  172 

.     S26 

143,  144,  145,  149 

395 

402 

248 

83 

143 

18,  229,  230,  233, 

425 

Copper     Miners     of    England, 

(Governor    and    Co.    of),   v.- 

Fox,        .  .  .      341,  342,  368 

Coppock  V.  Bower,    .         .        18,  216 

Cork  V.  Baker,  .         .         .         .110 

Cork     and     Bandon     Railway 

Company  v.  Cazenove,  . 
Cornforth  v.  Smithard, 
Cornill  v.  Hudson,     . 
Corpe  V.  Overton, 
Cory  V.  Cory,     . 
Cottam  V.  Partridge, 
Cotton  V.  Thurland, . 
Couturier  v.  Hastie,  . 
Cowan  V.  Milbourn,  . 
Cowie  V.  Remfry, 
Craufurd  v.  Hunter,  . 
Cripps  V.  Davis, 

V.  Hartnoll,    . 
Crosby  v.  Wadsworth, 


301 

468 

.     462 

.      294,  296 

.     325 

.     483 

.     279 

.      103 

.     195 

.     146 

.     251 

469,  471,  474 

98 

111,  112 

114 


90, 


Cross  V.  Eglin,  . 

Cuddee  v.  Rutter, 

CuUen  V.  Butler,        .         .      502, 

Cumining  v.  Hooper, 

Cummins  v.  Cummins, 

Cunard  v.  Hyde, 

Cundell  v.  Dawson,      17,  18,  229, 

Curlewis  i'.  Earl  of  Mornington, 

Cuthbert  v.  Cummings,     . 

D. 

Daintree  v.  Hutchinson,    . 
Dalby  v.  India  and  London  Life 

Assurance  Company,     . 
Dalton    V.     Midland    Counties 

Railwaj',         .... 
Dancer  v.  Hastings,  . 
Dane  v.  Kirkwall, 
D'Arcy  v.  Tamar   &c.  Railway 

Company,       .... 
Dartnell  v.  Howard, 
Davies  v.  Hopkins,    .         ... 
Davis  V.  HolcHng, 

V.  Mason,  .         .      202, 

Day  V.  Padrone, 
Deacon  v.  Gridley,    . 
Dean  and  Chapter    of  Femes, 

case  of,  .         .         .         <         • 


66 

446 
504 
218 

32 
228 
230 
464 

63 


243 

250 

312 

22 

321 

350 
176 

368 
222 
204 
312 
188 


6 


xu 


TABLE    OF   CASES. 


De  Begnis  v.  Armistead,    , 

De  la  Vega  v.  Vianna, 

De  Mautort  v.  Saimders,  . 

Ue  Roo  V.  Foster, 

Dendy  v.  Henderson, 

Derby  Uanal  Company  v.  Wil 

mot, 
Deslandes  v.  Gregory, 
Devaux  v.  Steiukeller, 
De  Wahl  v.  Braune, 
Dickenson  v.  Valpy, 


.  106, 
.  310, 
351,354, 
413, 


PAGE 

3,  19 
330 
415 
298 
200 

6 
405 
108 
330 
356, 
421 
294 

217 
306 


Dilk  V.  Keighley, 
Dimes  v.  Grand  Junction  Canal 
Company,       .... 
Dingley  v.  Robinson, 
Direct     Birmingham     Railway 
Company,   re,    ex  parte  Cap- 
per,          148 

Dixon  V.  Holroyd,      .         .         .  460 

Dobell  V.  Hutchinson,        .         .  82 

Dobson  V.  CoUis,        .         .         .  125 

Dodd  V.  Burchall,      ...  45 

Doe  d.  Allen  v.  Allen,        .         .  47 

d.  Bywater  v.  Brandling,    .  501 

d.  Gains  v.  Rouse,       .         .  47 

d.  Garnons  v.  Knight,         .  7 

d.  Hiscocks  v.  HiscocJiS,   47,  484 

d.  Lloyd  V.  Bennett,   .         .  7 

d.  Muston  V.  Gladwin,         .  29 

d.  Richards  v.  Lewis,           .  7 

Doggett  V.  Catterms,          .         .  247 

Dolling  V.  Evans,       .         .         ,77 

Dolman  v.  Orchard,  .         .         .  420 

Donellan  v.  Reed,      .         .         .  126 

Doorman  v.  J-enkins,          .         .  176 

Dormer  (Lord)  v.  Knight,          .  507 

Doughty  V.  Bowman,         .         .  498 

Dowling  V.  Ford,       .         .         .  477 

Dowthwaite  v.  Tibbut,      .         .  469 

Dresser  v.  Norwood,           .         .  398 

Driver  v.  Burton,       .         .         .  184 

Drury  v.  De  Fontaine,        .         .  256 

Dublin    and  Wicklow  Railway 

Company  v.  Black,         .         .  302 

Duignan  v.  Walker,  .         .         .  207 

Duke  V.  Andrews,      .         .         .  148 

Dunlop  V.  Higgins,    .         .         .  149 
Dunston  v.  Imperial  Gas  Light 

Company,       ....  374 

Duppa  V.  Mayo,          .         .     113,  116 
Durrell  v.  Evans,       .         .         .132 

Dutton  V.  Marsh,        .         .     363,  376 


E. 


East  Anglian  Railway  Company 
V.  Eastern  Counties  Railway 
Company,       ....     359 


Earle  v.  Peale,  . 

V.  Hopwood, 
Eastwood  V.  Kenyon, 


103,  154, 


Eden  v.  Blake,  . 
Edge  V.  Stafford, 
Edmunds  v.  Bushell, 
Edwards  v.  Baugh, 

V.  Towells, 
Egerton  v.  Brownlow,        .     223 
V.  Matthews,         .     135 
Elbinger  Actien  Gesellschaft  v 

Claye,    . 
Elderton  v.  Emmens, 
Elliott  V.  Richardson^ 
Elmore  v.  Kingscote,         .       7 
Elsee  V.  Gatward, 
Elves  V.  Crofts,  .         .     199, 

Emmerson  v.  Heelis, 
Emmet  v.  Dewhirst, 
Esposito  V.  Bowden,  .     221, 

Etherington  v.  Parrot, 
Evans  v.  Brown, 

V.  Collins, 

V.  Edmonds 

V.  Jones, 

V.  Pratt,  .  .  .       63, 

V.  Roberts,       .     112,  114, 
Evelj-n  V.  Chicester, 
Everett  v.  Robertson, 
Ewers  v.  Hutton, 
Exall  V.  Partridge,     . 


PAGE 

295 
219 
180, 
188 
68 
120 
377 
172 
441 
224 
136 

405 
190 
223 
135 
176 
205 
374 

45 
330 
434 

32 
227 
226 
244 
242 
115 
3C2 
472 
442 
182 


F. 

Fairlie  v.  Fenton,  .'  .  .  424 
Fallowes  v.  Taylor,  .  .  14,  216 
Falmouth  (Lord)  v.  Thomas,  .  115 
Fannin  v.  Anderson,  .     463,  464 

Farebrother  v.  Simmons,      132,  371, 

372 
Farley  i'.  Briant,  ...  31 
Farrar  v.  Deflinne,  .  .  .  422 
Farrer  v.  Hutchinson,  .  .  20 
Faulder  v.  Silk,  .  .  .  319 
Felthouse  v.  Bindley,  .  .  141 
Fernley  v.  Branson,  .  .  .218 
Fenn  v.  Harrison,  .  .  .  376 
Fennell  y.  Ridler,  .  .  _  .  256 
Fenton  v.  Emblers,  .  .  "  .  123 
V.  HoUoway,  .         .     326 

Feret.w.  Hill,  .  .  .  .195 
Fergusson  v.  Norman,  .  .  231 
Femes,  Dean  and  Chapter   of, 

case  of,  .  .  .  .  .  6 
Ffytche  v.  Bishop  of  London,  263,  264 
Field  V.  Lelean,  ...       64 

Fiudon  v.  Parker,  .  .  .  219 
Fish  V.  Kempton,       ,         .         .398 


TABLE    OF    CASES. 


XUl 


41 


Rail 


Fisber  v.  Fallowes,    . 

V.  Marsh, 
Fishmongers'  Company  v 

bertson, 
Fitch  V.  Sutton, 
Fitzgerald  v.  Fitzgerald, 

V.  Dressier, 
Fitzmaurice  v.  Bagley, 
Fivaz  V.  XichoUs, 
Fleet  V.  Murton, 
V.  Perrins, 
Flemyng  v.  Hector,   . 
Fletcher  v.  Fletcher, 

V.  Lord  Sondes, 
Flight  V.  Reed,  . 
Flight  V.  Salter, 
Flindt  V.  Waters, 
Flory  V.  Denny, 
Ford  V.  Yates,   . 
Fordham  v.  Wallis,  . 
Fores  v.  Johnes, 
Forster  v.  Rowland,  . 

V.  Taylor, 
Forsyth  v.  Bristowe, 
Forth  V.  Stanton, 
Foster  v.  Bates,. 

V.  Jolly, 
Fotherby  v.  Metropolian 

way  Company, 
Fox  V.  Bishop  of  Chester, 

V.  Clifton,  . 
Francis  v.  Hawkesley, 
Franks,  ex  parte, 
Fraser  v.  Pendlebury, 
Free  v.  Hawkins, 
Freeman  v.  Bosher,  . 
V.  Cooke,    . 
Fricker  v.  Tomlinson, 
Froset  v.  Walsh, 
Fuentes  v.  Montis,     . 
Furness  v.  Meek, 


G. 


Gale  V.  Reed,     . 
Gardner  v.  M'Mahon, 
Garforth  v.  Bradley, 
Gaskell  v.  King, 
Gaters  v.  Madeley,     .         .     307 
Geary  v.  Phj'sic, 
George  v.  Clagett,     .         .     396 
Gerhard  v.  Bates, 
German  Mining  Company,  in  re 
Gibbons  v.  Rule, 
Gibbs  V.  Fremont, 
V.  Harding, 
Gibson  v.  East  India  Company, 

V.  Holland,    . 

V.  Winter, 


PAGE 

.  178 
411,  412 
Ro- 

336 

20 

305 

99 

77 

214 

II,  424 

316 

390 

7 

263,  265 

188 

266 

330 

34 

42 

476 

193 

141 

232 

459 

93,96,  102 

391 

42 

448 

260 

413 

473 

309 

2,  278 

42 

391 

27 

89 

11 

431 

10 


199 
475 
315 

19 
313 

88 
399 
226 
356 
425 
328 
211 
340 

83 
400 


Girardy  v.  Richardson, 
Giraud  v.  Richmond, 
Gladwell  V.  Steggall, 
Glaholm  ^.  Hays, 
Glover  v.  Hackett, 
Goate  V.  Goate, 
Goddard's  case, 
Goddard  v.  Ingram, 
Godsall  I'.  Boldero, 
Godwin  v.  Cully, 

V.  Francis, 
Goldham  v.  Edwards, 
Goldshede  v.  Swan,  . 
Goodall  I'.  Lowndes, 
Goodburn  v.  Marley, 
Good  V.  Elliott, 
Goode  V.  Harrison,    , 
Goodman  v.  Chase,  . 
V.  Griffiths, 
Goodright  v.  Strapham, 
Goom  V.  Aflalo, 
Gore  V.  Gibson, 
Goss  V.  Lord  Nugent, 
Gr£eme  v.  Wroughton, 
Graham  v.  Fretwell, 
V.  Graham, 
V.  Musson, 
Granger  v.  Collins, 
Grant  v.  Grant, 

V.  Norway, 

V.  Maddox, 
Graves  v.  Key, 

V.  Legg, 
Greaves  v.  Ashlin, 
Green  v.  Creswell, 

V.  Price, 
Greene  v.  Coptree, 
Gregory  v.  Fraser, 
Grizewood  v.  Blane, 
GriflSth  V.  Young, 
Griudell  v.  Godmond, 
Grissell  v.  Robinson, 
V.  Bristowe, 
Gudgen  i\  Besset, 
Gunmakers'  Company  v. 
Guyard  v.  Sutton, 


PAGE 

.     195 

43, 123 

174 

504 

105 

473 

6 

476 

250 

468 

88 

258 

486 

215 

239 

244 

298 

99,  102 

77,  136 

6 

.     425 

.     326 

44,  45,  138 

.     217 

132,  373 

11 

132,  373 

190,  191 

47,  49 

.     389 

63,  486 

20 

.       62 

42 

98,  102 

.      165 

400,  405 

.     325 

.     245 

90 

.     442 

.     183 

.       56 

11 

197 

313 


Fell, 


H. 

Hall  V.  Cazenove, 

V.  Mayor  of  Swansea, 

V.  Potter,  . 

V.  Smithy   . 
Hallen  v.  Runcjer, 
Hamilton  v.  J[iils,     . 
Hammersley  v.  Baron  de  Biel, 
Hands  v.  Slaney, 
Hardie  v.  Grant, 
Hargreaves  v.  Parsons, 


83 


24 
336 
212 
423 
116 
315 
111 
287 
441 
104 


XIV 


TABLE    OF    CASES. 


PAGE 

131,  132,  136 
.     205 


Harman  v.  Reeve, 
Harms  v.  Parsons, 
Harnor  v.  Groves,     . 
Harrington  v.  Du  Chatel,. 
Harris's  case,  re  Imperial  Land 
.     149, 


43 
217 


152, 


150 
152 
29 
138 
158 
.  110 
.  295 
284,  286 
35,  373 
.  428 


Co.  of  Marseilles 
Harris  r.  Carter, 

V.  Goodwyn, 
V.  Wall, 
V.  Watson, 
Harrison  v.  Cage, 

V.  Cotgreave, 
V.  Fane, 
V.  Jackson, 
V.  Scott,     . 
Hart  V.  Frontino  etc.  Rail.  Co.,       27 
V.  Preudergast,           .      469,  470 
V.  Stephens, 
Hartley  v.  Ponsonbj', 
V.  Wharton, 
Harvey  v.  Grabham, 
V.  Graham,    . 
V.  Kay, 
Hasleham  v.  Young, 
Haslock  V.  Ferguson, 
Hastelow  v.  Jackson, 
Hawes  v.  Armstrong, 
Hawken  v.  Bourne,  . 
Hawker  v.  Halliwell, 
Hawkins  v.  Gathercole 
Hawtayn  r.  Bourne,  . 
Hayward  v.  Young,  . 
Heald  v.  Kenworthy, 
Heane  v.  Rogers, 
Heath  v.  Sanson, 
Hedley  v.  Baiubridge, 
Helps  V.  Clayton, 
Henderson  v.  Australian   Royal 
Mail  Steam  Navigation  Com- 
pany,       

Hewitt  V.  Isham, 
Hewlins  ;;.  Shippam, 
Heyhoe  v.  Burge, 
Heyling  v.  Hastings, 
Heyworth  v.  Knight, 
Hibblewhite  v.  M'Morine, 


.  305,  314 
152, 158, 159 
.  139 
.  137 
.  114 
.  349 
.  414 
.  107 
.  279 
76 
.  356 
.  272 
.  -266 
.  413 
.  204 
410 
25 
420 
423 
293 


400,  406, 


.  339 

33 

.   32 

.  413 

468,  469,  472 

148,  385 

5,  6,  348, 

349 

Hickman  v.  Cox,   .    .   413,  418 

Hicks  V.  Gregory,   .    .    .  187 

Hilliard,  in  re,   ....       90 

Hill  V.  Gray,      .         .         .         .226 

V.  Manchester  and  Salford 

Waterworks,  ...       20 

Hills  V.  Mitson,  .         .         .222 

Hilton  V.  Eckersley,  .         .         .210 

V.  Woods,        .         .         .219 

Hinde  v.  Whitehouse,         .         .     425 

Hindley    v.    Marquis  of    West- 

meath,   ....        18,  211 
Hitchcock  V.  Coker,         165,  203,  209 


PAGE 

Hitchin  v.  Groom,  .  .  .  486 
Hoadly  v.  M'Laine,  .  .  .  135 
Hoare  v.  Dawes,  .  .  .  413 
V.  Graham,  ...  42 
Hodges  V.  Hodges,  .  .  .  439 
Hodgkinson  v.  Fletcher,  .  .  440 
Hodgson  V.  Anderson,  .  .  102 
Hodson   V.  Observer   Life 

surance  Society, 
Hodson  V.  Terrill, 
Hogg  V    Snaith, 
Holcroft  V.  Hoggins, 
Holding  V.  Elliott, 

V.  Piggott, 
Holford  V.  Parker, 
Holmes  v.  Bell, 

V.  Blogg, 

V.  Higgins, 

V.  Mackrell, 

V.  Smith, 

V.  Williamson 
Holt  V.  Ward,    .. 
Homer  v.  Ashford, 
Hopkins  v.  Logan, 

V.  Prescott, 
Horner  v.  Graves, 
Horn  V.  Ivy, 
Horsey  v.  Graham, 
Horton  v.  Riley, 
Hotson  V.  Browne, 
Houliston  V.  Smith, 
How  V.  Synge,   . 
Howard  v.  Oakes, 

V.  Sheward, 
Howbeach    Coal    Company 

Teague, 
Howcutt  V.  Bonsor,  . 
Howden  v.  Haigh, 
Howson  V.  Hancock, 
Hubberslyi^.  Ward,  . 
Huber  v.  Steiner, 
Hubert  v.  Treherne,  . 
Hudson  V.  Clementson, 
Hughes  V.  Paramore, 
Hulse  V.  Hulse, 

Humble  i>.-Mitchell,  .         .12 

Humfrey  v.  Dale,        .         .      424,  425 

Humphreys  v.  Jones,  .         .     474 

Humphries  v.  Carvalho,     .         .     144 

V.   Smith,         .         .     222 

Hunt  V.  Bate,     ....     179 

V.  De  Blaquiere,        .      435,  442 

V.  Hort,     .  .  .  .       46 

V.  Massey,         .         •         .     139 

Hunter  v.  Gibbons,  .         .         .     456 

Hunting  v.  Sheldrake,        .         .       31 

Hurst  V.  Parker,  .  .  .469 

Hussey  v.  Crickett,    .         .         .     244 

Hutchinson  v.  Bowker,     67,  133,  134 

I'.  Tatham,  411,424 


As- 

252 
243,  279 
42 
419 
70 
54 
10 
28 
294,  300 
346 
468 
468 
177 
303 
197 
190 
217 
199, 201 
335 
117 
278 
43 
439 
19 
307 
388 

350 

459 

19 

274 

389 

329 

88 

61 

472 

181 

348 


TABLE    OF    CASES. 


XV 


PAGE 

Hutley  y.  Hutley,       .  .         .220 

Hutton  V.  Bullock,     .  .         .     405 

V.  Parker,      .  .        17,  208 

V.  Thompson,  .      357,  301 

V.  Warren,     .  .          52,  53 

Hyde  v.  Johnson,       .  140,  367,  475 


I. 


PAGE 

Jordan  v.  Norton,     133,  141,  1^13,  378 
Jortin  V.   South  Eastern  Rail- 
way Company,       .         .         .     460 


Imperial  Gas  Company  v.  Lon- 
don Gas  Company, 

Imperial  Land  Company  of  Mar- 
seilles, re,  Harris's  case,  149 
re.  Wall's  case, 

Ingledew  v.  Douglas, 

Inglis  V.  Haigh, 

Inman  v.  Stamp, 

Ireland  v.  Livingstone, 

Isberg  V.  Bowden, 


450, 
117, 


396, 


456 

150 
150 
295 
483 
121 
65 
309 


Jackson  v.  Cobbin     . 
V.  Lowe, 
V.  Woolley, 
Jacques  v.  Golightly, 

V.  Withy, 
Jarvis  v.  Wilkins, 
Jeakes  v.  White, 
Jee  V.  Thurlow, 
Jeffery  v.  Walton, 
Jeffreys  v.  Gurr, 
Jefferson  v.  Morton, 
Jelliott  V.  Broad, 
Jenkins  v.  Reynolds, 
Jenkyns  v.  Usborue, 
Jennings,  v.  Brown, 
Jennings  v.  Throgmortoi 
Jewsbury  v.  Newbold, 
Johnes  v.  Lawrence, 
Johnson  v.  Baker, 

V.  Dodgson, 
V.  Lucas, 
V.  Sumner, 
V.  R.  M.  Steam 
Company, 
Johnston  v.  Usborne, 
Jollj'  V.  Arbuthnot, 

V.  Rees,     . 
Jones  V.  Cuthbertson, 
V.  Flint,  . 
V.  Giles, 
V.  Lees,    . 
V.  Littledale, 
V.  Nicholson, 
V.  Orchard, 
V.  Randall, 
V.  Waite, 


.     191 
80,  133 
476 
275 
275 
76 
119 
211 
69,  70 
178 
31 
198 
73 
430 
187 
195 
433 
262 
8 
87 
312 
440 
acket 

182,  218 

.       62 

22 

4,  438,  440 

.     316 

114,  116 

.      268 

.     210 

59,  66 

.     502 

.     184 

.      244 

18,  211 


K. 

Kaye  v.  Dutton, 

Keates  v.  Lord  Cadogan 

Keir  v.  Leeman, 

Kelly  V.  Webster, 

Kerable  v.  Atkins, 

Kensington  v.  Inglis, 

Ketsey's  case,    . 

King  V.  Inhabitants  of  Graves 

end, 
King  V.  Hoare, 
Kingsford  u.  Merry, 
Kirk  V.  Bell, 
Kirkham  v.  Martyr, 
Knight  V.  Barber, 
V.  Bowyer, 
Kymer  v.  Suwercropp, 


424 


400, 


187 

226 

216 

118 

425' 

220 

300 

230 
466 
430 
346 
103 
129 
219 
406 


Lafond  v.  Raddock,  .         .         .     462 
Lainson  i\  Tremere,  .         .       21 

Lake  t^.  Duke  of  Argyll,    .      361,421 
Lampleigh  v.  Brath waite,  .     180 

Lane  v.  Bennet,  .         .         .     463 

V.  Ironmonger,  .      432,  437 

Lang  V.  Gale,     ....     486 
Lant  V.  Morris,  .         .         .     494 

Lavery  v.  Tnrley,      ...       91 
Law  V.  Wilkin,  .         .         .     185 

Laycock  v.  Pickles,  .         .         .119 
Laythoarp  v.  Bryant,  80,  90,  130 

Leaper  v.  Tatton,       .         .         .     469 
Leather  Cloth   Co.   v.   Lorsont,  206, 

207 
Lee  V.  Griffin,    .         .         .         .131 
V.  Jones,     ....     227 
V.  Lancashire  &  Yorkshire 

Railway  Co.,  .  .  20 
V.  Muggeridge,  .  .  154,  185 
V.  Wilmot,  .         .         .     471 

Leeds    Banking    Co.,    re,    Mal- 

lorie's  case,    ....     143 

Leideman  v.  Schultz,         .         .       61 

Leighton  v.  Wales,    .         .         .     165 

Lenuard  v.  Robinson,         .  .     405 

Leroux  v.  BrQwu,      89,  119,  123,  329 

Le  Veux  v.  Berkeley,         .         .     464 

Levy  V.  Baker,"  .         .         .     322 

V.  Pyne,    ....     423 

V.  Yates,  ....       18 

Lewis  V.  Kensington,  Lord,        .       87 

V.  Lee,     .         .         .         .308 


XVI 


TABLE    OF    CASES. 


PACK 

65,  67 
391 
367 
363 
371 
185 


Lewis  V.  Marshall,     . 

V.  Read,  . 
Ley  V.  Peter, 
Liadiis  V.  Melrose,     . 

V.  Bradwell, 
Linnegar  v.  Hodd, 
Liverpool,    Corporation    of, 

Wright,  .         .         .         .217 

Llewellyn  v.  Llewellyn,  .  .172 
Lloyd  V.  Guibert,  .  .  .388 
Lobb  V.  Stanley,  ...  87 
Lockett  V.  Nicklin,  ...  69 
London  &  Northwestern  Rail- 
way Co.  V.  M'Michael,  295,  301 
London  Dock  Co.  v.  Siunott,  342 
Longridge  v.  Dorvill,  .  .  171 
Lord  V.  Hall,  .  .  .  369,  1370 
Lowe  V.  Peers,  .  .  .  210 
Lozano  v.  Jauson,  .  .  .  502 
Lubbock  V.  Potts,  .  .  .274 
Lucena  v.  Crawfurd,  .  .  250 
Ludlow  (Mayor  of)  v.  Charlton,  333, 

335 
Lyde  v.  Barnard,  .  .  .108 
Lyuall  V.  Longbotham,     .         .     243 


M. 


Maber  v.  Maber,         .         .         .     479 
McCance  v.  London  and  North-  ' 

western  Railway,  .         .       25 

Macdonald  v.  Longbottom,        .       50 
JIacgregor  v.  Deal   and  Dover 

Railway  Company,  .  .  259 
M'George  v.  Egan,  .  .  .  432 
M'Intyre  v.  Belcher,  .         .     488 

M'lver  V.  Richardson,        .         .     143 
M'Kinnell  v.  Robinson,       18,  19,  239 

274 
M'Manus  v.  Bark,  .  .  .  152 
M'Neilage,  v.  Holloway,  .  .  307 
M'Neill  V.  Reid,  .         ,         .414 

Maddick  v.  Marshall,  .         .     385 

Magee  v.  Atkinson,  .  .  59,  66 
Mahony  v.  Kekule,  .  .  .  405 
Mainwaring  v.  Leslie,  .  .  441 
Mallan  v.  May,  17,  61,  198,  204,  486 
Mallett  V.  Bateraan,  ...  99 
Mallorie's  case,  re,  Leeds  Bank- 
ing Co.,  ....  143 
Malpas    V.   London    and    S.  W. 

Railway  Company,  .  .  -70 
Manby  v.  Scott,  .         .     437,  438 

Marsh  ik  Hutchinson,         .         .     309 
Marshall  v.  Lynn,      .  40,  45,  137 

V.  Rutton,  .  .  .308 

Martin  v.  Hewsou,     .         .         .     247 
Martini  v.  Coles,        .         .         .     429 


Masters,  re, 
Mathew  v.  Blackmore, 
Matthews  v.  Baxter, 
Mawson  v.  Blane, 
May  V.  Taylor, 
Mayfield  v.  Robinson, 
Jlazzinghi  v.  Stephenson 
Mechelen  v.  Wallace, 
Megginson  v.  Harper, 
Meredith  v.  Footuer, 
Mews  V.  Carr,    . 
Meyer  v.  Haworth,     . 
Meynell  v.  Surtees,    . 
Michelmore  v.  Mudge, 
Milford  V.  Hughes,     . 
Miller  v.  Titherington, 
Millership  v.  Brookes, 
Mills  V.  Borthwick,    . 
Milner  v.  Milnes, 
Mitchell  V.  Reynolds, 


PAGE 

219 


.  327 
.  140 
.  400 
33 
18 
.  117 
.  400 
.  433 
132,  373 
.  308 
.  149 
.  315 
.  425 
64,  65 
10 
.  466 
304,  306,  315 
17,  197,  201, 
225 
.  304 
.  440 
.  228 
59,  385,  386 
322,  323,  324 
.  430 


469, 


Mitchinson  v.  Hewson, 

Mizen  v.  Pick,  . 

Moens  v.  Heyworlh, 

Mollett  V.  Robinson, 

Molton  V.  Camroux, 

Monk  V.  Whittenbury, 

Jlonkman  v.  Shepherdson,         .     187 

Montacute  (Countess)  v.  Maxwell,  110 

Montague  v.  Benedict,        .     435,  436 

Monypenny  v.  Monypenny,     488,  500 

Moodie  v.  Bannister, 

Moon  V.  Witney  Union, 

Moore  v.  Campbell, 

V.  Ramsden,    . 
Moorsom  v.  Bell, 
Morgan  v.  Cordec, 

V.  Rowlands, 
Morley  v.  Morley, 
Morrell  v.  Frith, 
Morris  v.  Martin, 
Mortimore  v,  Wright, 
Morton  v.  Burn, 

V.  Copeland, 

V.  Woods, 
Mosely  v.  Hanford,    . 
Moss  V.  Tribe,  . 
Mouflet  vl  Cole, 
Mountstephen  v.  Lakeman 
Mouys  V.  Leake, 
Mozley  v.  Tinkler,     . 
Mumford  v.  Gething, 
Muncey  v.  Dennis,     . 
Munt  V.  Shrewsbury  and 

ter  Railway  Co.,    . 
Murray  v.  Earl  of  Stair, 

V.  Reeves 
Musgrave  v.  Drake, 
Myers  v.  Sari,    . 


.  460 
183,  369 
66,  137,  148 
267 
420 
401 
478 
460 
471 
441 
185 
169 
360 
22 
42 
323 
207 
101 
266 
143 
51,  160,  207 
55 
Ches- 

.     359 

9 

.     222 

.     423 

63,  65,  486 


100, 


TABLE    OF    CASES. 


XVll 


N. 


67, 


Xash  V.  Armstrong 
r.  Hodgson, 

Naylor  v.  Palmer, 

Xeilson  v.  Harford, 

Nelson  v.  Stocker, 

Xerot  r.  Wallace, 

Nesbitt  V.  Lushington, 

Newell  V.  Radford,     . 

Newland  v.  Watkins, 

Newman  v.  Newman, 

Newry   and    Enniskillen    Rail- 
way Company  v.  Combe, 

Newton  v.  Marsden,  . 

NichoUs  V.  Diamond, 

V.  Stretton,  .        20. 

Nieliolson  v.  Bradford  Union, 
V.  Ricketts, 

Noble  V.  Ward, 

Norfolk    Railway    Company 
M-Namara, 

Norris  v.  Irish  Land  Co.,         44 

Norton  v:  Powell, 

Nunn  V.  Fabian, 

Nnrse  ?;.  ''raig, 

Nye  '■.  Mosely, 


0. 


PA.Gr. 
29 
479 
502 
484 

.  298 
222 

.  504 
135,  136 

.     266 

.     263 


301 
210 
423 
200 
337 
155 
137 

28 
448 
256 
126 
440 

16 


Oliver  v.  WoodroflFe,  . 

295 

ez  parte,  re  Hodgson, 

19 

Oriental    Inland    Steam    Com- 

pany IK  Briggs, 

143 

Ornie  r.  Galloway,    . 

153 

(Jrmrod  v.  Huth, 

227 

Orrell  v.  Coppock,     . 

J97 

Owen  V.  Thomas, 

83 

V.  Van  Uster,  . 

423 

Paget  V.  Foley,  ...       36 

Paice  V.  Walker,  .  .  .412 
Paine  v.  Strand  Union,  .  .  334 
Pardo  V.  Bingham,  .  .  .  462 
Pargeter,  v.  Harris,  .  .  .  22 
Parker  v.  Ibbetson,  ...  57 
V.  Leigh,  .  .  .  169 
V.  Staniland,  .         .119 

Parkin  v.  Carruthers,         .         .     420 
Parkinson  v.  Collier,  .         .       59 

Parol  V.  Moor,  ....  336 
Parsons  v.  Alexander,  246,  247,  252 
V.  Thompson,  .  .217 
Parton  v.  Crofts,  .  .  .135 
Partridge  v.  Whiston,  .  .  263 
Pasley  v.  Freeman,  .  .  .  227 
Paterson  v.  Gandasequi,  400,  401,  402 


Paterson  v.  Powell 
Pawle  V.  Gunn,  .         .     177, 

Paxton  V.  Popham,   . 
Payler  v.  Homersham, 
Peacock  v.  Peacock, 
Pearce  v.  Brooks, 
Peate  v.  Dicken, 
Pellecat  v.  Angell,     . 
Pemberton  v.  Vaughan 
Penrose  v.  Martin,     . 
Perry  v.  Filzhowe,    . 
V.  Hall,    . 
■V.  Jackson, 
Peruvian  Railways  Company  v 

Thames  &  Mersey  Insurance 

Company, 
Peter  v.  Compton, 
Peters  v.  Fleming, 
Phillimore  v.  Barry 
Phillips  V.  im  Thurn 


ell, 


Philliskirk  v.  Pluckw 
Philpott  V.  Wallet, 
Pickard  v.  Sears,  • 
Pickering  v.  Busk, 
Piggott  V.  Stratton, 
Pilbrow    V.     Pilbrow's 


P.^GE 

249 
184 

17 
502 
419 
196 
255 
237 
204 
363 

33 
427 
464, 


363 
122 
284 
133 


312 
109,  110 
25,  26 
383 
.     496,  497 
Atmo- 


spheric Railway  Company,     .       21 

Pilkington  v.  Scott,  . '  208,  209 

Pinchorn's  case,         .  .  .32 

Pitt  V.  Purssord,        .  .  .     177 
V.  Smith,    ....     326 

Pittam  V.  Foster,        .  .  .     306 

Poplet  V.  Stockdale,  .  .     194 
Potts  V.  Bell,     ....     220 

Poulter  j^  Killingbeck,  .  .119 
Poilrtales  Gorgier  v.  Morris,     .     179 

Powell  V.  Horton,      .  .  .62 

Power  I'.  Butcher,     .  .  .     426 

Pownall  V.  Ferrand,            .  .177 

Prestwick  v.  Marshall,  .  .370 

Price  V.  Easton,          .  .  .160 

V.  Green,           .  .  20,  209 

V.  Moulton,       .  .  .27 

Priestly  v.  Fernie,     .  .  .     400 

Prince  v.  Brunatte,    .  .  .     370 

Prior  V.  Hembrow,    .  .  .     177 

Probart  v.  Knouth,    .  .  .     295 

Proctor  V.  Sargent,   .  165,  200,  204 

Prole  I'.  Wiggins,      .  .  .222 

Prugnell  v.  Grosse,   .  .  .     198 

Pust  V.  Dowie,            .  .  .     505 

Pym  V.  Campbell,      .  .  .11 


Q. 


Queen  v.  Hughes,  ...  3 
V.  Nevill,  .  .  .  255 
V.  Stamford  (Mayor  of),  333 
V.  Stoke-upon-Trent,      52,  56 


XVlll 


TABLE    OF    CASES. 


R. 

PAGE 

Rackham  v.  Marriott,  .  .472 
Ramazotti  v.  Bowring,  .  .  396 
Ramsey  u.  Macdonald,  .  .331 
Randall  v.  Morgan,  .  .  .110 
Randle  v.  Gould,  .  .  .211 
Rann  v.  Hughes,  .  .  33,  92,  93 
Rawlyns  v.  Vandyke,  .  .  439 
Read  v.  Legard,  .         .     324,  439 

V.  Royal  Exchange  Assur- 
ance Company,  .         .     251 
V.  Kingham,      .  .         .     104 

Reed  v.  Moore,  .         .         .     441 

Reeves  i\  Capper,  ...  34 
R.  V.  Bigg,         .         .  .         .337 

V.  Chawton,  .         .         .486 

V.  Cox,  .         .         .         .258 

V.  Hoare,  ....  466 
V.  Hughes,  ....  3 
V.  Inhab.  of  Gravesend,  .  230 
V.  Nevill,  ....  255 
V.  Oldland,  .  .  .  .186 
V.  Silvester,  *  .  .  .  254 
V.  Stamford  (Mayor  of),  .  333 
V.  Stoke-upon-Trent,    .  52,  56 

V.  Whitnash,  .  .  .     254 

V.  Younger,  .         .         .     258 

Reid  I).  Hoskins,         .         .         .221 
V.  Teakle,  .         .         .432 

Reuss  V.  Picksiey,  .  .  .  '89 
Renter  r.  Electric  Telegraph  Co.,  340 
Rhodes  v.  Smethurst,         .  .     464 

Richards  r.  Richards,  .  312,313 
Richardson  v.  Du  Bois,  .  440,  441 
Ricketts  v.  Bennett,  .  .     355 

Ridd  V.  Moggridgc,    . 
Kidgway  v.  Wharton, 
Ridley  v.  Plymouth  Baking  Co., 
Right  d.  Jeffereys  v.  Bucknall, 


476 
82 
350 
21, 
491 
385 
400 


Riley  v.  Packington, 

Risbourg  v.  Bruckner, 

Ritchie  r.  Smith,        .         18,221,231 

River  Steamer  Company,  in  re, 

Mitchells  claim,     .  .     473,  474 

Roberts  v.  Barker,     ...       55 
Robertson  v.  Jackson,        .       61,  486 
V.  Money,  .         .       61 

Robinson  v.  Gleadow,  .  .  391 
Robson  V.  Drummond,  .  .  420 
Roddam  v.  Morley,  .  .  .  460 
Rodwell  V.  Phillips,  .         .115 

Roe  d.  Wilkinson  v.  Tranmarr,  493 
Rogers  i'.  Payne,  ...  29 
Roscorla  v.  Thomas,  .     190,  191 

Rosewarne  v.  Billing,  .  .  246 
Ross  V.  Estates  Investment  Co.  226 
Rosseter  v.  Cahlmann,  .  .  268 
Rothschild  v.  Currie,  .  .     328 

Rourke  v.  Short,        .         .      245,  246 


P.\GE 

Routledge  v.  Grant,  .      144,  149 

Rowbotham  v.  Wilson,  .  .  22 
Rowe  V.  Hopwood,  .  .  .  140 
Ruckmaboye  v.  Mottichund,  .  329 
Rumsey  v.  George,  .  .  305,  306 
Rusby  V.  Scarlett,  .  .  .  380 
Russell  V.  Thornton,  .         .     143 

Rutland's  (Countess  of)  case,  40 
Ryder  i'.  Wombwell,       284,  286,  288, 

289 


S. 


Sainsbury  w.  Matthews, 

Sainter  v.  Ferguson, 

Saloon    Steam     Packet 
pany,  re,  ex  parte  Fletcher, 

Saltmarshe  v.  Hewett, 

Sanders  v.  Coward,    . 
V.  Rodway, 

Sandiman  v.  Breach, 

Sari  V.  Bourdillon,    . 

Saunders  v.  Wakefield, 

Saunderson  v.  Jackson, 
V.  Piper, 

Savage  v.  Madder, 

Scarfe  v.  Morgan, 

Scarpellini  v.  Atcheson, 

Schneider  v.  Norris, 

Scholey  v.  Walton,    . 

Scorell  V.  Boxall, 

Scotson  V.  Pegg, 

Scott  V.  Eastern  Counties 
way  Company, 

Seagram  v.  Knight,   . 

Seaton  v.  Benedict, 

Seignior  v.  Wolmer, 

Semenza  v.  Brinsley, 

Senior  v   Armitage, 

Sentance  v.  Poole,     . 

Shackell  v.  Rosier,    . 

Shadwell  v.  Shadwell, 

Sharrington  v.  Strolton, 

Sharman  v.  Brandt, 

Sharp  V.  Gibbs, 

Shaw  V.  Pritchard,    . 

Shelley  v.  Wright,     . 

Sherrington  v.  Yates, 

Shilling   I'.    Accidental 
Assurance  Companv, 

Shillito  V.  Theed, 

Shillibeer  v.  Glyn,     . 

Shipley  v.  Kymer, 

Shrewsbury  v.  Blount, 

and  Birmingham 
Ry.  Co.  V.  North-Western 
Ry.  Oo.  &  Shropshire  Union 
Ry.  Co.,  ....     359 

Shubrick  v.  Salmond,        .         .       13 

Sidwell  V.  Mason,      .         .         .     475 


114 

.   204, 

208 

Com- 

er, . 

143 

266 

457 

211 

255 

136 

73 

87 

46 

247 

.   256, 

257 

315 

86,  88 

478 

115 

158 

Rail- 

131 

466 

435 

394 

398 

52 

326 

19 

218 

155 

14 

'.      132 

371 

29 

266 

■  20 

306 

Death 

251 

243 

.   157 

174 

429 

228 

TABLE    OF    CASES. 


XIX 


Sigel  V.  Jebb,    . 
Simons  v.  Johnson,  . 
Simpson  v.  Bloss, 
V.  Lamb, 
V.  Margitson, 
V.  Nichols, 
Sims  V.  Bond,    . 
Sivewright  v.  Archibald, 
Skull  V.  Glenister,     . 
Sloane  v.  Packman, 
Smart  v.  Harding, 

V.  Sanders, 
Smethurst  v.  Mitchell, 
Smith  V.  Algar, 

V.  Bickmore,   . 

V.  Birmingham  Gas 
Company, 

V.  Bromley, 

V.  Cartwright, 

V.  Clegg, 

V.  CufFe, 

V.  Hill,    . 

V.  Hull  Glass  Com 

V.  Johnson, 

V.  Lindo, 

V.  Mawbood, 

V.  Neale, 

V.  Pococke, 

V.  Shelborne, 

V.  Smith, 

V.  Surman, 

V.  Thompson, 

V.  Thorne, 

V.  White, 

V.  Wilson, 
Smyth  V.  Anderson, 
Snelling  v.  Lord  Huntin 
Souch  ('.  Strawbridge, 
Southerton  v.  Whitelock, 
South   of  Ireland  Colliery  Co. 

V.  Waddle,     . 
South  Yorkshire  Ry.   Co 
,  River  Dun  Co.  v.  Gi'eat 

thern  Rj.  Co., 
Spartali  v.  Benecke, 
Spencer's  case, 
Spong  V.  Wright, 
Sprye  v.  Porter, 
Spurr  V.  Cass,    . 
Staines  v.  Wainwright, 
Standen  v.  Christmas, 
Stanley  v.  Jones, 
Stead  V.  Dawber, 
Steiglitz  V.  Egginton, 
Stephens  v.  De  Medina, 
Stewart  v.  Aberdein, 

V.  Cauty, 
Stikeman  v.  Dawson, 
Stockdale  v.  Onwhyn, 
•  Stones  V.  Dowler, 


PAGE 

239 

502 

214 

219 

62, 

485 

.      256, 

257 

396 

.      133, 

425 

, 

484 

267 

117 

428 

400 

170 

279 

Light 

336 

'.      275, 

276 

335 

183 

.      277, 

2T8 

464 

pany. 

*351 

368 

36,  230, 

425 

234 

89, 

126 

456 

259 

163 

.      115 

133 

484 

472 

195 

62,  67 

486 

407 

gfield, 

123 

.      123 

126 

300 

V  Co. 

."     340, 

360 

).  and 

Nor- 

359 

64 

30 

470 

219 

395 

19 

222 

30 

219 

45 

137 

35 

349 

427 

56 

296 

194 

69 

Stowell  V.  Robinson, 
Stracy  v.  Bank  of  England, 
Strachan  v.  Thomas, 
Stratton  v.  Rastall,  . 
Stretton  v.  Busnach, 
Strithorst  v.  Grteme, 
Stronghill  v.  Buck, 
Stroud  V.  Marshall, 
Sturgis  V.  Darrell, 
Surtees  v.  Lister, 
Sutton  V.  Tatham, 
Swan  V.  Phillips, 
Sweet  V.  Lee,  . 
Sweeting  v.  Pearce, 
Swift  V.  Winterbotham, 
Syers  v.  Jonas, 


462, 


56,  177, 

76,  90, 
.      427, 


PAGE 
45 

171 

36 

20 

308 

464 

21 

319 

464 

158 

385 

108 

124 

428 

109 


Tabram  v.  Freeman,  .         .     222 

Tallis  V.  Tallis,  .        17,  199,  205 

Tanner  v.  Smart,    205,  468,  469,  471, 

472 

Taplin  v.  Florence,    ...       33 

Tarbuck  v.  Bispham,         .         .     321 

Taylor  v..Ashton,      .         .         .226 

ex  parte,   in  re  Burrows,   294, 

300 

V.  Chester,      .         .         .     195 

V.  Crowland  Gas  Com- 


pany,      . 

232 

V.  Hilary, 

102 

V.  Laird, 

185 

V.  Stray, 

56, 

177 

Teal  V.  Auty,     . 

115, 

119 

Tempest  v.  Kilner,     . 

129, 

348 

Tempson  v.  Knowles, 

171 

ThackoorseydasstJ.  Dhoudmull, 

245 

Thorn  V.  Bigland, 

227 

Thomas  v.  Edwards, 

. 

217 

V.  Thomas,   . 

160 

Thompson  v.  Bell,     . 

328 

V.  Waithman, 

476 

Thomson  v.  Davenport, 

402, 

403, 

406, 

412 

Thornborow  v.  Whiteacre 

163 

Thorne  v.  Kerr, 

460 

Thornton  v.  Illingworth, 

468 

Thursby  i'.  Plant, 

30 

Tidswell  v.  Ankerstein, 

251 

Tomlinsou  v.  Gell,    . 

98 

102 

Toms  V.  Cuming, 

368 

Toussaint  v.  Martinnant, 

178 

Townes  v.  Mead, 

463 

Tredweu  v.  Bourne, 

356 

Trimbey  v.  Vignier, 

328 

329 

Trueman  v.  Hurst,     . 

295 

V.  Loder,     .        [ 

9,  382 

392 

Tuckey  v.  Hawkins, 

455 

XX 


TABLE   OF   CASES. 


Tupper  V.  Foulkes,    . 

Turner  v.  Rookes, 
V.  Trisby, 
V.  Thomas,    . 
V.  Vaughan, 

Turney  v.  Dodwell. 

Tweddle  v.  Atkinson, 

Tyler  v.  Bennett, 


U. 


PAGE 

7 

442 

289 

399 

16 

.      468 

477 

.      110 

161 

112 

Udhe  V.  Walters,  ...  .61 
Underwood  v.  Nicholls,  .  .  427 
Unity   Banking   Association  v. 

King,  ....  297,  298 
Universal  Banking  Corporation, 

ex  parte  Gnnn,         .  .  .     143 

Unwin  v.  Leaper,       .         .         .     214 


Valpy  V.  Gibson,  .  .  .136 
Van  Casteel  v.  Booker,  .  .  430 
Vandenbergh  v.  Spooner,  .     135 

Varney  v.  Hickman,  .         .     247 

Vaughan  v.  Hancock,  .  .  117 
Vere  v.  Ashby,  .         .         .     420 

Vernon  v.  Smith,  ...  30 
Vollans  V.  Fletcher,  .         .148 

Von  Lindenau   v.  Desborough,     251 


W. 


Wade  V.  Simeon, 

172 

V.  Tatton, 

108 

Wain  V.  Warlters,      .      73,  74, 

75,  76 

Wainman,  v.  Kyuman, 

479 

Wainwright  v.  Bland, 

251 

Waite  V.  Jones, 

19 

Waithman  v.  Wakefield,    . 

434 

Wakefield  v.  Newton, 

218 

Walcot  V.  Walker,     . 

194 

Walker  v.  Crofts, 

266 

V.  Hunter, 

486 

V.  Perkins,    . 

195 

V.  Rostron,   . 

190 

Wall's   case,  re  Imperial  Lane 

Co.  of  Marseilles, 

150 

Waller  v.  Laay, 

475 

Wallis  V.  Day,  . 

17 

V.  Liitell, 

41 

Walstab  s.  Spottiswoode, 

148 

Ward  V.  Byrne, 

203 

Waring  v.  Favenck, 

400 

Warner  v.  Harrison, 

149 

V.  M'Kay, 

398 

V.  Willington, 

77,  89 

PAGE 

Warwick  v.  Bruce,    .         .         .     303 
Waterford  and  Dublin  Railway 

Company  v.  Pidcock,     .         .     347 

Waters  iJ.  Earl  of  Thanet,  .     471 

V.  Tomkins,  .         .     480 

Watson  V.  Bales,        .         .         .     346 

Watts  V.  Friend,         .         .         .136 

Waugh  V.  Carver,      .         .         .421 

V.  Cope,         .         .         .480 

V.  Morris,       .  .  .236 

Webb  V.  Plummer,    ...       55 

V.  Rhodes,        .         .         .183 

V.      Commissioners       of 

Heme  Bay,  27,  448 

Webster  v.  Webster,  .         .211 

Weeks  v.  Maillardet,  .         .         6 

Welford  v.  Beazley, 

Wells  V.  Horton, 

V.  Malbon, 

Wennall  v.  Adney, 

West  V.  Blakeway, 

ex  parte,  reW.  &  J 
Westhead  v.  Sproson, 
Westropp  V.  Solomon, 
Wetherell  v.  Jones,  . 
Wharton  v.  Mackenzie, 
Whitcomb  v.  Whiting, 
White  V.  Bluett, 
V.  Cuyler, 
Whitehead  v.  Barron, 

V.  Greetham, 
V.  Tuckett, 
Whitley  v.  Lowe, 
Whittaker  v.  Howe, 
Whywall  v.  Champion, 
Wigglesworth  v.  Dallison 
Wiles  V.  Woodward, 
Wilkes  V.  Ellis, 
Wilkin  V.  Manning, 
Wilkinson  v.  Byers,  . 
V.  Evans, 
n.  Grant, 
V.  Lindo, 
V.  Lloyd, 
n.  Oliveira, 
Willatts  V.  Kennedy, 
Williams  v.  Byrnes, 
'v.  Griffith, 
■    V.  Harrison, 
V.  Hedley, 
V.  Jones,     . 
«'.  Keatsi,     . 
V.  Lake, 
V.  Moor, 
V.  Paul, 
V.  Protheroe, 
Williamson  v.  Clements, 
V.  Dawes, 
V.  Watts, 
Willis  V.  Newham.    . 


15 


.     123 

.     312 

187,  188 

29 

.  West,  297 

152 

56,  177,  388 

228,  234 

287 

476 

166 

433 

420 

174 

376 

477 

2C0 

294 

52 

22 

425 

222 

172 

137 

183 

400 

349 

163 

169 

77 

469 

295 

276 

60,  462 

420 

7,  135 

295 

257 

219 

156 

309 

295 

480,  482 


15 


TABLE    OF    CASES. 


XXI 


P.\GB 

Willison  i'.  Patteson, 

.      330 

Wilson  V.  Bevau, 

.      171 

V.  Curzoii, 

.      340 

V.  Ford, 

.      444 

i>.  Mushett,    . 

.      211 

(.'.  Poulter,     . 

.      391 

n.  Tumman.  . 

.     392 

V.  Whitehead, 

.     418 

(1.  Wilson. 

18.  211 

V.  Zulueta,     . 

.     404 

Wing  V.  Mill,     . 

.      186 

Wolton  V.  Gavin, 

.     2o6 

Wontner  v.  Shairp,    . 

.      148 

Wood  V.  Duke  of  Al•g^ 

11. 

361,  421 

V.  Leadbitter, 

29,  33 

V.  Rowcliffe,    . 

.     430 

Worsley  i>.  South   Devon 

Rail- 

way  Company, 

.      33 

WoTtliington  o.  Gritns 

lift 

h,  479.  480 

Worthington  i'.  Warrington 
Wright  V.  Dantiah,     . 
V.  Stavert,     . 
Wyatt  V.  Hodson, 


Xenos  V.  Wickhani, 


Y. 

Yates  V.  Aston, 
V.  Boen, 
Yea  V.  Fouraker, 
Yeatmau,  ex  parte, 
Young  ('.  Raincock, 
V.  Timinins, 


PAGE 

.      .50G 

132,  371 

.11(5 

.      47G 


M 
319 
4<j8 
219 

21 
208 


TABLE  OF  STATUTES 


CITED  IN  THIS  WORK. 


3  &  4  Anne,  c.  9, 

c.  16,  s. 
6  Anne,  c.  16, 
9  Anne,  c.  14,  s.  1, 
s.  2, 
10  Anne,  c.  19,  s.  121, 
12  Anne,  stat.  2,  c.  12 


PAGE 

.     270 

19,        463,  465 

18,  230,  424 

238,  239,  244 

.     239 

.     424 

,    258,  259,  260 


3  Car.  1,  c.  1,     ,       .         .         .     255 

16  Car.  2,  c.  7,  s.  3,  .         .      238,  244 

29  Car.  2,  c.  3,  .         .         .  5,  70 

s.  1,    71,  119-121,  374 

S.  2,    .         71,  120,  374 

s.  3,    .         .        71,  374 

s.  4,    .     72,  80,  84',  85, 

89,  92,  95,  100,  101, 

103-105,    109,     111, 

113,  117,    120,    121, 

126,    127,    129,   130, 

132,    135,   136,    154, 

348,  374. 

s.  5,   .         .         .       71 

ss.  6,  7,      .         .       72 

s.  17,         72,  80,  113, 

128-132,    135,    136, 

348,  372,  374. 

ss.  19,  20,  27,     .       72 

c.  7,  .         .         .         .     253 


E. 

13  Edw.  1,  Stat.  3,  c.  1, 
27  Edw.  3,  c.  9, 
13  Eliz.  c.  5,      . 
c.  20,.  . 
31  Eliz.  c.  6,      . 


8  Geo.  1,  c.  25, 


3 
3 

.     151 

.     266 

258,  259 


2  Geo 
7  Geo 

13  Geo 

18  Geo 

14  Geo 

19  Geo 
34  Geo 
36  Geo 
43  Geo 

54  Geo 

55  Geo 

57  Geo 

58  Geo 

4  Geo 

5  Geo 

6  Geo 

7  Geo 
7  &  8 
9  Geo 


2,  c 
2,  c. 
2,  c. 

2,  c. 

3,  c, 
c. 

3,  c. 
.  3,  c. 

3,  c 

3,  c. 
.  3,  c. 

3,  c. 

3,  c. 
c. 

.  3,  c. 
.  4,  c. 

4,  c. 
.  4,  c. 

c 
.4,0. 
Geo. 
.  4,  c. 


11,      240. 
140,  249. 


15, 


8,  s.  9 

19, 

34, 

48, 

78, 

37, 

61, 
,  86,  s.  2 

84, 

96, 

194,  s. 

Ix., 

99, 

93. 

83, 

74,  s.  23, 

81,  ss.  25,  26 
,94,         . 

46,         . 
4.  c.  25, 

14,  s.  1, 

s.  5, 

s.  6, 

s.  7, 

,94,         . 


23  Hen.  8,  c.  6, 
27  Hen.  8,  c.  10, 
32  Hen.  8,  c.  34, 


21  Jac.  1,  c.  16, 


PASE 

.     397 
.     425 

240,  241 

241,  242 
250,  251 

.  140 
.  250 
.  258 
•  231 
.  266 
12 
222 

230,  424 
.  '266 
.  271 
.  429 
.  267 
.  233 
.     429 

109,  344 
.     265 

367,  466 

138,  302 
.  106 
.      131 

265,  266 


16 
3(1 


J. 


.      460,  465 

3.4, 

.     462 

s.  7, 

.     461 

1  &  2  Vict.  c.  106, 
c.  110, 


>66 
4 


XXIV 


TABLE   OF    STATUTES. 


4,  24, 


17 


PAGE 

4 

.     445 

.     241 

429,  431 

35 

.     368 

343,  350 

.     231 

.     344 

301.  343 

.  '  343 

.     343 

34,  120 

13 

.     238 

244,  272 

244-248 

.      100 

4 

.     449 

ss.  128,  129, 

449,  453 

C.  83,   .  .  .        35 

c.  29,   .  .  .     268 

c.  107,  ss.  170,  L71,172, 

228 

c.  113,  ss.  24,  27,     475 

c.  119,  .  .     247 

&  18  Vict.  c.  90,  .  .  .     238 

c.  104,  s.  55,  Sch. 

E,  .         . 

c.  125,  s.  3, 

ss.  68-74, 


1  k.  3  Vict.  c.  11,     . 

c.  54,     . 
?>  Vict,  c  5,      . 
.")  &  6  Vict.  c.  39,     . 

c.  45,  s.  13 

6  &  7  Vict.  c.  18,  s.  100 

7  &  8  Vict.  c.  110,  . 

ss 
c.  113.  . 

8  &  9  Vict.  c.  16,  '   . 

c.  18,     . 
c.  20,     . 
c.  106,  s.  3, 
s.  5, 
c.  109,   . 

s.  15, 

s.  18, 

11  &  12  Vict.  c.  63,  s.  69, 

15  &  16  Vict.  c.  76,  s.  32, 

s.  93, 


16  &  17  Vict. 


19  c<c  20  Vict.  c.  47,    . 

c.  97,  s.  3,  . 
s.  9,  . 
s.  10, 
s.  11, 
s.  12, 
s.  13, 
s.  14, 


35 
451 
446 
447 
.  343 
75,  105 
.  483 

457,  462 

458,  456 
.  464 

368,  475 
.  476 


20  k   21  Vict.  c.  49,     .    .  344 

c.  80,     .    .  343 

c.  85,  s.  7,     .  310 

ss.  21,  26,    311 

23  Vict.  c.  28,  '.    .    .    .  253 

25  &  26  Vict.  c.  89,  337,  340,  344,  357 

s.  18,     .  360 

ss.  23,  3J,   366 

s.  38,   364,  365 


25  &  26  Vict.  c.  £9,  s.  47,   362, 
S.  55, 
s.  75, 
ss.  79,  80, 
ss.  90,  134, 
27  &  28  Vict.  c.  117, 
30  &  31  Vict.  c.  23,  s.  7,  . 

c.  131,    .   334 
s.  37,   340, 

32  &  33  Vict.  c.  62,  ss.  4,  5,   . 

■  s.  6,  . 
c.  71,  ss.  31,  39, 

33  &  34  Vict.  c.  14,  s.  2,  . 

c.  23,  s.  1,  . 

ss.  6,  7,  8,  30 

c.  93, 

s.  1,  . 
s.  10, 

s.  11,   307, 
s.  12, 
36  &  37  Vict.  c.  66,  ss.  24,  25, 

s.  25,  sub-s. 

6,    220, 

Sched.  R.  1, 

36, 

R.  49, 


PAT.  E 

363 
362 
365 
364 
364 
267 
140 
357 
361, 
362 
99 
4 
399 
333 
331 

332 
304 
316 
316 
317 
307 
446 

269 

449 
485 


W. 

3  Will.  3,  c.  14, 

10  &  11  Will.  3,  c.  24,  s.  14, 

1  Will.  4,  c.  47, 

2  Will.  4,  c.  16,  ss.  11.  12. 

2  &  3  Will.  4,  c.  39, 

3  &  4  AVill.  4.  c.  27, 

c.  42 


5-  &  6  Will.  4,  c. 


104, 
41, 


6  &  7  Will 


c.  63. 

4,  c.  37', 

C.  76, 


31 

258 

31 

235 

450 

36 

,  s.  3,         36,  453, 

454,  457,  465 

S.  4,    .  .     457 

S.  5^         458,  460, 

475 

.     460 

.      463,  464 

32 

44,  24-5,  271, 

272 

.      267,  268 

.     258 

.     419 


s.  6, 

s.  7, 


THE 

LAW  OF  CONTRACTS 


LECTURE  L 


ON    THE    NATUEE    AND    CLASSIFICATION   OF  CONTRACTS   AND   ON 
CONTRACTS   BY    DEED. 

The  ^vhole  practice  of  our  English  Courts  of  Common 
Law,  if  we  except  their  criminal  jurisdiction  and  their 
administration  of  the  law  of  real  property,  to  which  may 
be  added  those  cases  which  fall  within  the  fiscal  juris- 
diction of  the  Court  of  Exchequer,  may  be  distributed 
into  two  classes,  Contracts  and  Torts.  Of  this  you  can 
easily  satisfy  yourselves  by  putting  to  your  own  minds 
any  conceivable  case  of  legal  inquiry.  If  it  do  not  in- 
volve a  question  of  criminal  law,  or  of  the  title  to  land, 
or  of  Exchecj[uer  jurisdiction,  you  will  find  that  it  re- 
solves itself  into  a  contract  or  a  tort.  Thus,  suppose  it 
to  be  the  non-performance  of  a  covenant,  the  non-pay- 
ment of  a  bond,  the  dishonor  of  a  bill  of  exchange,  the 
non-payment  of  rent,  the  default  of  a  surety, — these  are 
all  subjects  of  inquiry  arising  *from  contracts,  p-^c^-. 
So,  again,  if  it  involve  an  assault  on  the  person, 
an  injury  to  the  reputation  by  libel  or  slander,  a  nuisance 
to  the  dwelling,  a  conversion  of  property, — these  are 
only  so  many  descriptions  of  torts.  And  as  the  subjects 
of  legal  inquiry  divide  themselves,  so  do  the  forms  in 
1 


A  SMITH  S    LAW    OF    CONTRACTS. 

which  the  inquiry  is  carried  on  ;  for  all  actions,  as  you 
are  aAvare,  are  of  tort  or  of  contract,  a  division  which, 
as  you  see,  is  rendered  necessary  by  the  very  nature  of 
things,  and  does  not  result  from  an}^  arbitrary  principle 
of  arrangement. 

Now,  therefore,  the  whole  subject-matter  of  the  in- 
quiries about  which  our  Courts  of  Law  are  conversant 
(excepting  the  cases  I  have  excepted)  being  distributable 
into  these  two  heads.  Contract  and  Tort,  I  am  about  to 
take  the  former  of  them,  that  of  contract,  and  to  state 
those  principles  of  every-day  recurrence  which  govern 
the  law  of  England  relative  to  contracts,  and  which  it 
is  absolutely  necessary  that  every  lawyer  should  bear 
constantly  in  mind,  and  have  (to  use  the  ordinary  ex- 
pression) at  his  fingers'  ends,  if  he  will  avoid  falling 
into  egregious  mistakes  in  the  course  of  his  daily 
practice. 

All   contracts  are  divided  by  the   Common   Law  of 
England  into  three  classes  : — 

1.  Contracts  by  matter  of  record. 

2.  Contracts  under  seal. 

3.  Contracts  not  under  seal,  or  simple  contracts. 
p5:o-|        *With  regard  to  contracts  by  matter  of  record, 

they  are  so  little  used  in  the  ordinary,  affairs  of 
private  individuals,  that  I  may  dismiss  them  in  a  very 
few  words.  A  Record  is  a  memorial  or  remembrance 
on  rolls  of  parchment ;(«)  and  such  memorial  is  riot  a 
record  until  enrolled  in  the  proper  office. (^)  At  an 
early  period  of  our  law,  statutes  merchant  and  statutes 
staple,  which  are  both  contracts  of  record  for  the  pay- 
ment of  debts,  were  commonly  in  use.     Subsequently, 

[a)  Co.  Litt.  260  a. 

[b)  Q.  V.  Hughes  and  others,  36  L.  J.  Privy  Coun.  23  ;  Com.  Dig. 
Record. 


CONTRACTS    OF    RECORD.  3 

recognizances  in  the  nature  of  a  statute  staple  were 
established,  (f)  These  contracts  are,  however,  now 
almost  unheard  of.  The  only  contract  of  record  with 
which  we  now  occasionally  meet  is  a  recognizance,  and 
that  oftener  in  matters  in  which  the  Crown  is  concerned 
than  between  subject  and  subject.^     Thus  an  ordinary 

(c)  13  Ed.   I,  Stat.  3,  c.  1  ;  27  Ed.  3,  e.  9  ;  23  Hen.  8,  c.  6  5  8  Geo.  1, 


/^  A  statute  provision  requiring  a  deed  or  contract  to  be  recorded  for 
safe  keeping,  and  notice  to  purchasers,  does  not  thereby  make  it  a  record, 
in  the  technical  sense  of  that  term.  And  it  has  been  so  held  even  in 
cases  in  which  the  legislature  have  directed  the  process  upon  such  deed 
or  contract  to  be  by  scire  facias,  a  writ  which  at  common  law  lies  on  a 
record  only.  Thus, -in  Pennsylvania,  it  has  been  decided  that  mil  tie! 
record  is  no  plea  to  a  scire  facias  on  a  mortgage :  Frear  v.  Drinker,  8 
Penn.  St.  520  ;  so  also  that  the  registry  of  a  mechanic's  lien  is  no 
record,  and  to  .a  scire  facias  upon  it,  the  plea  of  mil  tiel  record  is  a 
nullity  :  Davis  v.  Church,  1  W.  &  S.  240.  A  recognizance  is  a  debt  of 
record,  entered  into  before  some  court,  judge,  or  magistrate,  having 
authority  to  take  the  same:  Com.  v.  Emery,  2  Binn.  431  ;  Page  v.  Mis- 
sissippi, 25  Miss.  54.  If  the  j-ecognizance  does  not  show  that  the  court 
or  judge  had  jurisdiction  of  the  subject-matter,  it  is  void:  Bridge  v. 
Ford,  4  Mass.  641,  7  Mass.  209  ;  Com.  v.  Bolton,  1  S.  &  R.  328.  It  need 
not  be  under  the  seal  of  the  party  :  State  v.  Root,  2  Rep.  Const.  Ct.  123  ; 
Hall  V.  State,  9  Ala.  827  ;  nor  signed.  A  certificate  that  it  was  ac- 
knowledged on  the  day  of  its  date  is  sufiBcient:  Madison  v.  Com.,  2  A. 
K.  Marsh.  131  ;  Com.  v.  Mason,  3  Ibid.  456.  It  cannot  be  aided  by 
parol  averments.  If  made  returnable  at  a  time  when  no  term  of  court 
is  holden,  and  there  is  nothing  in  the  record  from  which  the  court  can 
infer  that  such  time  was  intended  to  describe  the  time  of  the  next  session 
of  the  court,  the  recognizance  is  void  :  Treasurer  v.  Merrill,  14  Verm. 
64;  The  State  v.  Crippen,  1  Ohio  St.  399.  See  Com.  v.  Bolton,  1  S.  & 
R.  328.  A  paper  purporting  to  be  a  recognizance,  but  taken  by  one  not 
authorized,  although  not  technically  a  recognizance,  is  good  as  a  bond 
at  common  law:  Dennard  v.  State,  2  Kelley  137;  contra,  Sargent  v. 
State,  16  Ohio  267.  The  mere  fact  that  proceedings  are  erroneous,  will 
not  avoid  a  recognizance  given  in  the  course  of  them  :  Com.  t'.  Huffey, 
6  Penn.  St.  348.  A  recognizance  need  not  recite  the  special  facts 
which  gave  the  officer  an  authority  to  act  in  the  particular  case  in  which 
it  was  taken.  It  is  enough,  if  he  had  jurisdiction  in  cases  of  that  general 
description  ;  and  it  appears  that  the  condition  is  to  do  something  to 
which  a  party  may  legally  be  bound  by  recognizance:  People  v.  Kane. 


O  SMITHS   LAW    OF    CONTRACTS. 

mode  of  compelling  a,  witness  to  attend  and  prosecute 
or  give  evidence  in  a  criminal  case  is  by  recognizance, 
in  which  he  binds  himself  to  the  Queen  in  a  certain  sum 
conditioned  for  the  performance  of  thQ  duty  imposed  on 
him;  and  in  case  of  his  making  default,  that  sum  accord- 
ingly becomes  forfeited,  and  payable  to  Her  Majesty. 
The  commonest  case  of  a  recognizance  between  subject 
and  subject  was  that  of  bail;  which  has,  however,  be- 
P^  ,n  come  much  less  frequent  *since  the  Act  restrain- 
ing the  right  to  arrest  on  mesne  process. (c?)  It 
may  be  added  that  statutes  and  recognizances  obtained 
or  entered  into  in  the  name  or  upon  account  of  Her 
Majesty,  do  not  affect  lands  as  to  purchasers,  unless 
registered  under  stat.  2  &  3  Vict.  c.  11. 

The  peculiar  incidents  of  contracts  of  record  are,  first, 
that  like  all  records,  they  prove  themselves ;  that  is, 
their  bare  production,  without  any  further  proof,  is  suf- 
ficient evidence  of  their  existence,  should  it  be  contro- 
verted. 

Secondly,  that,  if  it  become  necessary  to  enforce  them, 
that  may  be  done,  if  it  be  thought  proper,  by  writ  of 
scire  facias, — a  writ  which  lies  on  a  record   only,  and 

{d)  1  &  2  Vict.  c.  110.  See  now  as  to  arrest,  32  &  33  Vict.  c.  62,  s. 
0  ;  Reg.  Gen.  Mich.  Term,  18G9,  Rules  5,  6. 

4  Denio  530;  The  People  v.  Millis,  5  Barb.  S.  C.  511;  Gildersleeve  v. 
The  People,  10  Ibid.  35.  The  record  is  not  the  forfeiture  of  a  recogni- 
zance, but  only  evidence  of  it ;  and  neglect  of  the  clerk  to  omit  to  record 
the  forfeiture  when  it  is  decreed,  cannot  aifect  it.  It  may  be  entered 
nunc  pro  tvnc,  and  the  record,  when  so  amended,  is  conclusive  in  a  col- 
lateral proceeding :  Rhoads  v.  The  Com.,  15  Penn.  St.  272.  A  recogni- 
zance taken  in  open  court  is  of  itself  evidence  that  it  was  taken  by  the 
order  of  the  court  without  any  formal  entry  to  that  effect:  Cheemasen 
V.  People,  18  111.  405.  A  recognizance  is  a  common  law  obligation  and 
the  sureties  may  be  bound  separately  from  their  principal :  People  v. 
Dennis,  4  Mich.  G09.  A  recognizance  being  a  record  cannot  be  averred 
against:  People  v.  Watkins,  19  111.  117. 


ON    CONTRACTS    BY   DEED.  4 

cannot  be  made  use  of  for  the  purpose  of  enforcing  any 
other  description  of  contract.  (<?) 

An  obligation  by  record,  however,  may  be  discharged 
by  a  deed  of  release,  though  a  deed  is  a  matter  of  infe- 
rior degree.  (/) 

However,  as  I  said,  the  other  two  classes  of  contracts 
are  those  which  are  of  most  practical  importance,  and  to 
them,  therefore,  my  observations  will  be  addressed. 
These,' as  I  have  said,  are — 

1.  Contracts  by  deed. 

*2.   Contracts   without   deed,   or   simple   con-    r-...--, 

[-oj 

tracts. 

1.  With  regard  to  contracts  by  deed  : 

A  deed  is  a  tvritten  instrument,  sealed  and  delivered. {(/) 

Let  us  pause  for  a  few  moments  to  consider  the  parts 
of  this  definition. 

In  the  first  place,  it  is  a  wn'itten  instrument,  and  this 
writing,  the  old  books  say,  must  be  on  paper  or  parch- 
ment; for  if  it  were  written  on  linen,  wood,  or  other 
substance,  it  would  not  be  a  deed.(/^)  But,  though 
every  deed  must  be  written,  (/)  it  is  not  necessary  that 
every  such  instrument  should  be  signed,  for  at  Common 
Law,  signature  was  not  essential ;  [k]  and,  although  by 
several  statutes,  particularly  the  Statute  of  Frauds,  (/) 
signature  has  been  rendered  essential  to  the  validity  of 
certain  specified  contracts,  yet  there  are  many  contracts 
which  are  not  affected  by  any  statute ;  and  to  these 
last-mentioned  contracts,  and  also  to  those  which  are 
the   subject   of    several    sections    of    the     Statute    of 

(e)  Now  re,2;ulated  by  15  &  16  Vict.  c.  76,  s.  32. 
{/)  Barker  v.  St.  Quintin,  12  M.  &  W.  441  ;  Shepp.  Touch.  322. 
{g)  Co.  Litt.  171  b  ;  Shepp.  Touch.  50.    See  Ililjblewhite  v.  M'Morine. 
6  M.  &  W.  200. 

(7t)  Co.  Litt.  35  b.  (0  Shepp.  Touch.  54. 

(A-)  Id.  56.  [l]  29  Car.  2,  c.  3. 


0  SMITHS    LAW   OF    CONTRACTS. 

Frauds,  (m)  if  entered  into  hy  deed,  signature  is  not  neces- 
sary, (^z)^ 

r:i:p-|  '''Secondly,  it  must  be  sealed  and  delivered.  This 
is  the  main  distinction  between  a  deed  and  any 
other  contract.  The  seal  is  an  indispensable  part  of 
every  deed/  and  so,  except  in^asejof^the^deed^^XA-Sorr- 
poration,  (o)  is  the  delivery,  {jp)  From  this  delivery  it  is 
^■BTperfect  deed,  taMhg^its  effect  from  this  essential  part 
of  its  completion.  (^)  It  obviously  follows  immediately 
from  this  proposition  that  after  delivery  it  cannot  be 

(?«)  See  Shepp.  Touch,  by  Preston,  56;  Cooch  v.  Goodman,  2  Q.  B. 
(42  E.  C.  L.  R.)  580;  Aveline  v.  AYhisson,  4  M.  &  Gr.  (43  E.  C.  L.  R.) 
801 ;  Cherry  v.  Heming,  4  Exch.  631.     See  2  Blackst.  Comm.  305. 

(?i)  Bac.  Abr.  Ohligation,  C. 

(o)  Case  of  Dean  and  Chap,  of  Femes,  Dav.  Rep.  116  ;  Derby  Canal 
Co.  V.  Wilmot,  9  East  360. 

{p)  Shepp.  Touch.  57. 

[q)  Goddard's  case,  2  Rep.  4  b. 

^  Maule  v.  Weaver,  7  Penn.  St.  332 :  .Jeffery  v.  Underwood,  1  Pike 
108.     But  see  Armstrong  v.  Stovall,  26  Miss.  275. 

^  The  policy  of  the  common  law  as  to  the  use  and  nature  of  a  seal, 
was  very  fully  discussed  by  Kent,  C.  J.,  in  Warren  v.  Lynch,  5  Johns. 
244,  where  the  Court  refused  to  recognize  a  scrawl  or  scroll  made  by 
the  pen  as  a  seal,  and  held  that  a  seal  must  be  composed  of  wax  or  some 
tenacious  substance.  By  statute  in  that  State,  however  (Stat,  of  7  April, 
1848,  c.  197),  the  impression  of  the  seal  upon  the  paper  is  sufficient  in 
the  case  of  a  corporation,  and  the  statutes  of  Maine,  Vermont,  New 
Hampshire,  and  Massachusetts,  give  validity  to  such  impressions  in  the 
case  of  legal  processes  and  official  documents.  With  this  exception,  all 
the  New  England  States  adhere  to  the  common  law  requisitions  of  a 
seal.  In  New  Jersey,  a  scroll  with  the  pen  is  a  sufficient  seal  on  any 
instrument  for  the  payment  of  money.  (Rev.  Stat.  1846.)  By  the 
common  law  of  Pennsylvania,  Delaware,  North  and  South  Carolina,  and 
Mississippi,  such  a  scroll  has  always  been  recognized  as  a  sufficient  seal, 
and  in  most,  if  not  all  the  other  States,  it  is  believed  that  the  law  has 
been  so  settled  by  statute. — r. 

See  Roberts  v.  Pillow,  I  Hempst.  624.  The  fact  that  a  writing  con- 
tains the  words  "  sealed  with  my  seal,"  when  there  is  no  seal  or  scroll 
attached,  will  not  make  it  a  sealed  instrument:  Chelton  v.  People,  66 
111.  501. 


ON    CONTRACTS    BY    DEED.  6 

altered — not  even  by  filling  up  a  blank,  (r)  With  re- 
gard to  delivery,  however,  you  must  observe,  that  it  is 
not  absolutely  necessary  that  the  party  executing  should 
take  the  instrument  into  his  hand  and  give  it  to  the 
person  for  whose  benefit  it  is  intended; (5)  but  as  it  is 
said  by  Lord  Coke:(^)  "«  deed  may  he  delivered  hy  tvords 
ivithout  actual  touch,  or  hy  touch  loithout  words."  '"  The 
delivery,"  his  Lordship  says,  "  is  sufficient  without  any 
words  ;  for,  otherwise,  a  man  who  is  mute  could  not 
deliver  a  deed.  .  .  .  And,  as  a  deed  may  be  delivered 
to  the  party  without  tvords,  so  may  a  deed  be  delivered 
by  zvords  without  any  act  of  delivery ;  as,  if  the  writing 
sealed  lieth  on  the  table,  and  the  feoffor  or  oblisor  saith 
to  the  feoffee  or  obligee, '  Go  and  take  up  the  writing,  it 
*is  sufficient  for  you,  or  it  will  serve  the  turn,  or  r-.-- 1 
take  it  as  my  deed,  or  the  like  words,  it  is  a  suffi- 
cient delivery."  (zi)  However,  in  practice,  it  is  always 
safest  and  most  advisable  to  follow  the  ordinary  and 
regular  course,  which  is,  to  cause  the  person  who  is  to 
deliver  the  deed  to  place  his  finger  on  the  seal,  thereby 
acknowledging  the  seal  to  be  his  seal,  and  state  that  he 
delivers  the  instrument  as  his  act  and  deed.^ 

(?•)  Weeks  v.  Maillardet,  14  East  508  ;  Hibblewhite  v.  M'Morine,'  6  M. 
&  W.  200. 

(s)  See  Goodright  v.  Strapham,  Cowp.  204,  and  Bac.  Abr.  Ohliya- 
tiou,  C. 

(t)  Co.  Li'tt.  3G  a. 

(u)  See  further  Doe  d.  Lloyd  v.  Bennett,  8  Car.  &  P.  (34  E.  C.  L.  R.) 
124 ;  Tapper  v.  Foulkes,  30  L.  J.  (C.  P.)  214. 


'  AVhile  delivery  is  essential  to  the  legality  of  a  deed,  it  may  be  either 
actual  or  verbal ;  it  is  sufficient  if  there  be  an  intention  or  assent  of  the 
mind  on  the  part  of  the  grantor  to  treat  the  deed  as  his  :  Stewart  v. 
Redditt,  3  Md.  67;  McLure  v.  Colclough,  17  Ala. -89.  The  possession 
of  the  deed  by  a  party  chiiming  under  the  grantee  is  evidence  of  de- 
livery to  such  grantee  until  the  contrary  is  shown :  Stewart  v.  Redditt, 
3  Md.  67;  McMorris  v.  Crawford,   15  Ala.  271:  Rushin  v.  Shields,  11 


/  SMITH  S    LAW    OF    CONTRACTS. 

It  is  not  necessary  that  the  delivery  should  be  to  the 
person  who  is  to  take  the  benefit  of  the  deed.  The 
judgment  in  the  case  of  Doe  d  Garnons  v.  Knight,  (2^) 
which  w^as  delivered  by  Sir  John  Bayley  after  a  curia 
advisari  vuU,  is  w^orthy  of  a  most  careful  perusal ;  the 
learning  relating  to  this  subject  will  be  found  there 
clearly  collected  and  discussed.     The  inference  which 

[x)  5  B.  &  C.  (11  E.  C.  L.  R.)  671.  See  Botcherby  v.  Lancaster,  1 
A.  &  E.  (28  E.  C.  L.  R.)  77  ;  Doe  d.  Richards  v.  Lewis,  20  L.  J.  (C.  P.) 
177  ;  Fletcher  v.  Fletcher,  4  Hare  67. 

Ga.  636 ;  Dawson  v.  Hall,  2  Mich.  390 ;  Berry  v.  Anderson,  22  Ind.  36  ; 
Rhine  V.  Robinson,  27  Penn.  St.  30;  Firemen's  Ins.  Co.  v.  McMillan,  29 
Ala.  147 ;  Sadler  v.  Anderson,  17  Tex.  245-,  Little  v.  Gibson,  39  N.  H. 
505  ;  Morris  v.  Henderson,  37  Miss.  492  ;  Black  v.  Shreve,  2  Beas.  455  : 
Berry  v.  Anderson,  22  Md.  36  ;  Black  v.  Thornton,  30  Ga.  899,  31  Ibid. 
641 ;  Benson  v.  Woolverton,  2  McCarter  158  ;  Tuttle  v.  Turner,  28  Tex. 
759;  Newlin  v.  Beard,  6  W.  Va.  110;  Billings  v.  Stark,  15  Fla.  297. 
The  acknowledgment  and  recording  of  a  deed  are  sufficient  to  warrant 
the  presumption  of  a  legal  delivery,  and  as  the  clerk,  after  he  has  re- 
corded it,  is  bound  to  return  it  to  the  grantee,  the  possession  of  it  by 
him  will  be  regarded  as  the  possession  of  the  grantee  :  Stewart  v. 
Redditt,  3  Md.  67.  See  Critchfield  v.  Critchfield,  24  Penn.  St.  100.  The 
recording  of  a  deed  by  the  grantor  under  circumstances  which  create  no 
suspicion  of  fraud,  may  be  considered  evidence  of  delivery  :  Buckley  v. 
Buffington,  5  McLean  457.  It  is  at  most,  however,  prima  facie  evidence 
of  delivery :  Wilborn  v.  Weaver,  17  Ga.  267  ;  Rowell  v.  Hayden,  40  Me. 
582 ;  Berkshire  Ins.  Co.  v.  Sturgis,  13  Gray  177  ;  Boai'dman  v.  Dean,  34 
Penn.  St.  252;  Somers  v.  Pumphrey,  24  Ind.  231;  Jackson  v.  Cleve- 
land, 15  Mich.  94;  Robinson  v.  Gould,  26  Iowa  89;  Kerr  u.  Birnie,  25 
Ark.  225.  From  the  fact  of  signing,  the  jury  may  presume  the  sealing 
and  delivery,  although  there  be  no  reference  to  sealing  in  the  body  of 
the  writing,  if  there  be  a  seal  aflBxed  to  the  name  :  Miller  v.  Binder-,  28 
Penn.  St.  489.  The  delivery  of  a  deed  to  the  recorder  for  the  grantees 
is  sufficient,  if  the  grantees  had  agreed  to  accept:  Hoffman  v.  Mackall, 

5  Ohio  (N.  S.)  125  ;  Boody  w.  Davis,  20  N.  II.  140;  Molineaux  v.  Coburn, 

6  Gray  124;  Bensley  v.  Atwill,  12  Cal.  231  ;  Balbec  v.  Donaldson,  2 
Grant  459  ;  Masterson  v.  Cheek,  23  111.  72;  Prettyman.w.  Goodrich,  23 
111,  330.  When  a  deed  was  executed,  handed  to  the  register,  and  re- 
corded without  the  knowledge  or  assent  of  the  grantees,  after  which  the 
grantor  took  and  kept  possession  of  it,  it  was  held  that  in  the  absence  of 
evidence  that  he  intended  this  to  constitute  a  delivery,  it  was  not  his 
deed  :  Hayes  v.  Davis,  18  N.  H.  600. 


ON    CONTRACTS    BY    DEED.  / 

the  Court,  of  which  his  Lordship  was  the  organ,  there 
drew  from  all  the  authorities  on  the  subject  was,  first, 
"that  where  an  instrument  is  formally  sealed  and  deliv- 
ered, and  there  is  nothing  to  qualify  the  delivery  but 
the  keeping  the  deed  in  the  hands  of  the  executing 
party,  nothing  to  show  that  he  did  not  intend  it  to  ope- 
rate immediately,  that  it  is  a  valid  and  effectual  deedj_ 
aiid  that  delivery  to  the  party  who  is  to  take  *by  pitc-i 
it,  or  any  other  person  for  his  use,  is  not  essential :" 
secondly,  "that  delivery  to  a  third  person  for  the  use  of 
the  party  in  whose  favor  a  deed  is  made,  where  the 
grantor  parts  with  all  control  over  the  deed,  makes  the 
deed  effectual  from  the  instant  of  such  delivery."^ 

^  As  early  as  the  year  1809,  the  case  of  Belden  v.  Carter,  4  Day  66. 
was  similarly  decided  in  Connecticut  upon  much  the  same  facts  as  in 
Doe  V.  Knight,  and  in  1814,  twelve  years  before  the  decision  of  that  case 
(which  is  also  reported  in  8  D.  &  R.  348,  and  see  Exton  v.  Scott,  6  Sim. 
21),  the  same  conclusions  had  been  arrived  at,  upon  a  review  of  nearly 
the  same  authorities,  in  the  case  of  Souvcrbye  v.  Arden,  1  John.  Ch. 
240,  decided  by  Mr.  Chancellor  Kent,  whei-e  the  grantor  of  a  voluntary 
deed  having  sworn  in  his  answer  to  a  bill  filed  by  the  grantees,  "  that 
he  believed  that  he  and  his  wife  sealed  the  deed  in  the  presence  of  two 
witnesses,  and  that  they  may  have  used  the  formal  words  of  delivery,'' 
it  was  held  that  neither  the  subsequent  retention  of  the  possession  of 
the  deed  by  the  grantor,  nor  his  subsequent  declaration  contrary  to  its 
tenor,  could  destroy  its  efficacy  :  Young  v.  Moore,  1  Strobhart  55  •,  and 
it  is  well  settled  that  if  the  deed  has  ever  been  once  actually  delivered, 
the  retention  or  the  parting  with  its  possession  is  an  immaterial  fact : 
Scruggins  v.  Wood,  15  Wend.  545  -,  Jackson  v.  Dunlop,  1  Johns.  Cas. 
114;  Brinkerhoff  v.  Lawrence,  2  Sand.  Ch.  406  ;  Rosevelt  w.  Carrow,  6 
Barb.  S.  C.  190;  Jones  v.  Jones,  6  Conn.  Ill ;  Den  v.  Farlee,  1  Zab.  285; 
Blight  V.  Schenck,  10  Penn.  St.  285  ;  Farrar  v.  Bridges,  5  Humph.  411. 

But  upon  the  question  whether  there  has  ever  been  a  delivery,  the 
possession  of  the  instrument  may  have  a  material  bearing.  Delivery  is, 
to  a  certain  extent,  a  question  for  the  jury,  but  under  the  direction  of 
the  Court ;  to  what  extent  may  be  well  exemplified  by  the  case  of  Doe 
V.  Knight,  which  was  an  ejectment  upon  a  mortgage.  Wynne,  an  at- 
torney, who  had  been  in  his  lifetime  the  owner  of  the  premises  in  ques- 
tion, had  received  a  large  sum  for  his  client  Garnon-s,  and  sent  word  to 
him  that  he  had  misapplied  £10,000  of  it,  but  that  he  would  make  him 


O  SMITH  S    LAW    OF    CONTRACTS. 

Before  quitting  the  subject  of  delivery,  it  is  right  to 
explain  the  distinction  between  a  deed,  ordinarily  so 

secure.     Some  years  after  Wynne  wrote  with  his  own  hand  a  mortgage 
of  all  his  property  to  Garnons  to  secure  £10,000,  brought  it  into  the 
presence  of  his  niece,  signed  and  sealed  it,  said,  "  I  deliver  this  as  my 
act  and  deed,"  and  then  took  it  away.     In  the  same  month  he  delivered 
a  parcel  to  his  sister,  saying,  "Take  this,  it  belongs  to  Mr.  Garnons." 
Some  days  after,  he  asked  for  and  took  away  the  parcel,  and  in  a  few 
days  returned  it,  somewhat  reduced  in  bulk,  saying,  "  Here,  put  this 
by."     Some  months  after  this,  Wynne  died,  having  fii-st  executed  a 
second  mortgage  of  all  his  property  to  another  person.     The  pai'cel  was 
found  to  contain  the  mortgage  which  the  niece  had  witnessed,  which 
was  to  secure  £10,000,  together  with  a  statement  of  the  account  between 
Garnons  and  himself,  showing  an  indebtedness  of  that  amount.     The 
jury  were  told  that  if  the  delivery  to  the  sister  was,  under  the  circum- 
stances, a  departing  with  the  possession  of  the  deed,  and  of  the  power 
and  control  over  it  for  the  benefit  of  Garnons,  and  to  be  delivered  to  him 
either  in  Wynne's  lifetime,  or  after  his  death,  they  should  find  for  the 
plaintiS",  but  that  if  it  was  merely  delivered  to  her  for  safe  custody  as 
the  depositary,  and  was  subject  to  his  future  control  and  disposition, 
they  should  find  for   the  defendant.     The  jury  having  found   for   the 
plaintifi".  Sir  John  Bayley,  in  delivering  the  opinion  of  the  Court  refus- 
ing a  new  trial,  adverting  to  the  objection  that  the  conclusion  which  the 
jury  drew,  viz  :  that  the  sister  held  the  mortgage  free  from  the  control 
of  her  brother,  had  no  premises  to  support  it,  answered  it  by  saying  that 
although  the  sister  did  return  it,  yet  she  would  have  been  justified  had 
she  refused.     (See  to  the  same  eifect  as  to  the  depositary  being  a  trustee 
for  the  grantee :  Belden  v.  Carter,  4  Day  66.)    Two  questions,  therefore, 
arose ;  first,  whether  when  a  deed  is  duly  executed  and  formally  de- 
livered with  appropriate  words,  but  retained  by  the  party  executing  it, 
that  retention  will  obstruct  the  operation  of  the  deed,  which  question 
was  answered  in  the  negative ;  and  secondly,  whether  if  delivery  for 
such  party  be  essential,  a  delivery  to  a  third  person  will  be  sufficient,  if 
such  delivery  puts  the  instrument  out  of  the  power  and  control  of  the 
party  who  executed  it,  though  such  third  person  does  not  pass  the  deed 
to  the  party  benefited  until  after  the  death  .of  the  grantor.    This  question 
was  answered  in  the  affirmative ;  and  both  of  these  propositions  are  per- 
fectly settled  law  on  both  sides  of  the  Atlantic :  Belden  v.  Carter,  4  Day 
66 ;  Johnson  v.  Ruggles,  13  Johns.  288 ;  Brown  v.  Brown,  1  W.  &  M. 
325  ;  Bryan  v.  Wash,  2  Gil.  557 ;  Merrills  v.  Swift,  18  Conn.  257  ;  and 
see  many  cases  collected  in  the  opinion  of  the  Court  in  Hulick  v.  Scovil, 
4  Gil.  159. 

The  grantor's  placing  the  deed   upon   record — his  putting  it  in  the 


ON   CONTRACTS    BY    DEED.  8 

termed,  aud  an  escroiv.{jj)  An  escrow  is  a  deed  deliv- 
ered conditionally  to  a  third  person,  to  be  delivered  to 

(?/)  Shepp.  Touch.  58. 

post-office  directed  to  the  grantee — his  bringing  an  action  for  the  con- 
sideration-money— the  grantee's  having  posession  of  the  deed — or  of  the 
premises  consistently  with  the  tenor  of  the  deed — constitutes  prima 
facie  evidence,  upon  which  the  jury  may  presume  that  the  deed  was  de- 
livered :  Porter  v.  Cole,  4  Greenl.  25 ;  Ward  v.  Lewis,  4  Pick.  520 ;  Mills 
V.  Gore,  20  Id.  36  ;  Games  v.  Stiles,  14  Pet.  322 ;  Collins  v.  Bankhead,  1 
Strobh.  25;  Houston  v.  Staunton,  11  Ala.  412;  M'Kinney  v.  Rhoads,  5 
Watts  343 ;  Rigler  v.  Cloud,  14  Penn.  St.  364 ;  Blight  v.  Schenck,  10 
Ibid.  285  ;  Gardner  v.  Collins,  3  Mason  401.  So,  where  a  deed  was  left 
in  the  hands  of  the  magistrate  before  whom  it  was  acknowledged,  and 
was  afterwards  taken  away  by  the-  brother  of  the  grantee  for  him,  this 
was  held  sufficient  evidence  to  go  to  the  jury,  from  which  they  might 
presume  delivery:  Arrison  v.  Harmsted,  2  Penn.  St.  191  ;  while,  on  the 
other  hand,  if  the  deed  were  put  into  the  post-office,  directed  not  to  the 
grantee  nor  his  agent,  but  to  an  agent  of  the  grantor,  it  would  be  error 
to  leave  the  question  of  delivery  to  the  jury,  as  there  would  be  no  evi- 
dence from  which  delivery  could  be  presumed  :  Elsly  v.  Metcalf,  1  Denio 
324 ;  White  v.  Baily,  14  Conn.  271.  So,  where  there  were  neither  acts 
done  nor  words  spoken  fi'om  which  a  delivery  could  \>q  inferred,  and  the 
possession  of  the  deed  by  the  jsarty  seeking  to  take  advantage  of  it  was 
accounted  for  by  his  having  taken  possession  of  all  the  papers  of  the 
grantor  after  his  death,  it  was  held  error  to  leave  the  question  of  de- 
livery to  the  jury:  Clayton  v.  Livermore,  4  Dev.  &  Bat.  238. 

It  was  suggested  by  the  English  editor  that  the  qualifications  adopted 
in  Doe  v.  Knight  had  been  overlooked  by  the  more  recent  authorities, 
and  that  the  doctrine  of  that  case  has  been  of  late  more  broadly  laid 
down.  But  it  is  believed  that  they  do  not  either  narrow  or  enlarge  the 
rules  adopted  in  that  case,  being  (with  but  one  exception,  Grudgeon  i'. 
Gerrard)  cases  of  voluntary  settlements  in  favor  of  near  relatives,  or  the 
like,  sought  to  be  enforced  in  equity,  as  to  which,  it  has  been  repeatedly 
held,  that  Courts  will  go  farther  in  the  presumption  of  a  delivery  than 
in  ordinary  cases  of  conveyance :  Bi-yan  v.  Walsh,  2  Gilm.  557  ;  Brown 
V.  Brown,  1  W.  &  M.  325  ;  Souverbye  v.  Arden,  &c.  In  Fletcher  v. 
Fletcher,  4  Hare  67,  cited  by  him,  a  testator  executed  a  voluntary  cove- 
nant with  trustees,  that  in  case  his  two  natural  sons  should  survive  him, 
his  executors  should  pay  to  the  trustees  .£60,000  for  such  of  the  sons  as 
should  be  living  at  the  time  of  his  death.  This  instrument,  which  pur- 
ported to  be  regularly  executed,  was  found  among  the  testator's  papers 
some  years  after  his  death,  and  upon  a  bill  filed  by  the  surviving  son  to 
have  the  covenant  enforced,  the  stress  of  the  argument  was  laid  upon 


SMITH  S    LAW    OF    CONTRACTS. 


the  person  for  whose  benefit  it  purports  to  be,  on  some 
condition  or  other.     If  that  condition  be  performed,  it 


the  deed  being  voluntary,  executory  and  testamentary,  and  as  such 
revoked  by  the  subsequent  will ;  and  Vice-Chancellor  Wigram,  after 
answering  these  objections,  said,  "  The  only  other  question  arises 
from  the  circumstances  of  the  instrument  having  been  kept  in  the  pos- 
session of  the  party  ;  does  that  aflPect  its  legal  validity  ?  In  the  case  of 
Dillon  V.  Coppin,  4  Myl.  &  Cr.  660,  I  had  occasion  to  consider  that 
subject,  and  I  took  pains  to  collect  the  cases  upon  it.  The  case  of  Doe 
V.  Knight  shows,  that  if  an  instrument  is  sealed  and  delivered,  the  re- 
tainer of  it  by  the  party  in  his  possession  does  not  prevent  it  from 
taking  effect.  No  doubt  the  intention  of  the  parties  is  often  disap- 
pointed by  holding  them  to  be  bound  by  deeds  which  they  have  kept 
back,  but  such  unquestionably  is  the  law."  The  cases  thus  referred  to 
were  Barlow  v.  Heneage,  Prec.  Ch.  211  5  Lady  Hudspn's  case.  Id.  235 ; 
Clavering  v.  Clavering,  2  Vernon  473,  Dom.  Proc.  1  Bro.  P.  C.  122 ; 
Broughton  v.  Broughton,  1  Atkins  625  ;  Doe  v.  Knight,  Sear  v.  Ashwell, 
3  Swans.  411  ;  AVorrall  v.  Jacob,  3  Meriv.  256  ;  and  Exton  v.  Scott,  6 
Sim.  31 ;  the  first  four  of  which  were  all  cited  and  reviewed  in  Doe  v. 
Knight,'  and  the  language  used  in  that  case  by  Sir  John  Bayley,  and 
quoted  supra,  was  cited  by  Mr.  Wigram  at  length. 

In  looking  at  the  cases  in  equity  upon  this  head,  much  will  be  found 
to  turn  upon  the  nature  of  the  instrument,  and  the  purpose  for  which 
it  was  intended  :  Bryan  v.  Walsh,  2  Gilm.  557  ;  Souverbye  v.  Arden, 
&c.  Thus,  in  Ward  v.  Lamb,  Prec.  Ch.  182,  the  Court  refused  to  de- 
cree the  giving  up  of  a  voluntary  bond  made  to  a  daughter,  to  protect 
the  obligor  fi'om  taxation,  and  retained  by  him  ;  and  in  Cecil  v.  Butcher, 
2  Jac.  &  Wal.  573,  the  Court  refused  to  enforce  a  conveyance  made  (and 
retained)  by  a  father  in  favor  of  a  son  in  order  to  give  him  a,  qualifica- 
tion to  kill  game,  and  the  Master  of  the  Rolls,  after  viewing  the  au- 
thorities, said,  "  They  have  not  depended  solely  upon  the  question 
whether  the  party  has  made  a  voluntary  deed  ;  not  merely  upon  whether 
having  made  it,  he  keeps  it  in  his  own  possession  ;  not  merely  ujjon 
whether  it  is  made  for  a  particular  purpose  :  but  when  all  these  circum- 
stances are  connected  together,  when  it  is  voluntary,  when  it  is  made 
for  a  purpose  that  has  never  been  completed,  and  when  it  has  never 
been  parted  with,  then  the  courts  of  equity  have  been  in  the  habit  of 
considering  it  as  an  imperfect  instrument :"  Ward  v.  Ward,  2  Hayw. 
226  ;  Jackson  v.  Inabnit,  2  Hill  Ch.  411  ;  Kirk  v.  Turner  et  al.,  1  Dev. 
Ch.  14. 

The  acceptance  by  the  grantee  of  a  deed  is  as  essential  to  its  validity 
as  its  delivery  by  the  grantor.  It  rests,  however,  upon  much  stronger 
presumption  where  the  deed  purports  to  confer  a  benefit,  and  an  actual 


yymoc6(^^^x 


ON    CONTRACTS    BY    DEED. 


becomes  an   absolute  deed;   till  then  it  continues    an 
escrow,  and,  if  the   condition  never  be  performed,  it 


acceptance  need  not  then  be  shown  in  the  first  instance,  either  by  the 
grantee  himself,  or  any  one  beneficially  interested  under  it :  Butler  and 
Baker's  case,  3  Co.  26  b  ;  Thompson  v.  Leach,  2  Ventr.  202;  Hatch  v. 
Hatch,  9  Mass.  307  ;  Belden  v.  Carter,  4  Day  66  ;  Church  v.  Oilman,  15 
Wend.  656 ;  Eeed  v.  Marble,  10  Paige  409  ;  Tate  u.  Tate,  1  Dev.  &  Bat. 
(Ch. )  22;  Halsey  U.Whitney,  4  Mason  214.  The  presumption  is,  of 
course,  however,  liable  to  be  rebutted,  and  it  will  be  nearly,  if  not  quite, 
overthrown  in  cases  where  the  acceptance  of  the  deed  confers  no  benefit, 
or  inflicts  a  positive  harm  upon  the  other  party  :  Jackson  r.  Bodle,  20 
Johns.  184  ;  Camp  v.  Camp,  5  Conn.  300  ;  Kenfro  v.  Horrison,  10  Mo. 
411. 

How  far  the  relation  back  of  the  subsequent  acceptance  to  the  original 
delivery  will  affect  the  attaching  of  intermediate  interests,  is  a  question 
of  some  j^ractical  importance.  In  Wilt  v.  Franklin,  1  Binn.  502,  the 
rights  arising  under  an  execution  levied  between  the  period  of  delivery 
of  an  assignment  for  creditors,  and  assent  by  the  grantee — a  space  of 
four  days, — were  postponed  to  those  arising  under  the  deed  :  Merrills  v. 
Swift,  18  Conn.  257,  was  very  similar  to  Doe  v.  Knight.  A  debtor  being 
in  failing  circumstances  executed  a  mortgage,  and  delivered  it  to  one 
for  the  use  of  the  mortgagee.  The  mortgage  was  immediately  recorded, 
and,  some  time  after,  was  assented  to  by  the  mortgagee,  and  it  was  held 
to  be  entitled  to  a  preference  over  an  intermediate  attachment.  In 
Harrison  v.  The  Trustees  of  Philips'  Academy,  12  Mass.  401,  where  art- 
embarrassed  debtor  made  a  conveyance  to  his  sureties  by  way  of  pre- 
cautionary indemnity,  of  which  they  were  ignorant  till  a  month  after- 
ward, when  it  was  assented  to  by  them,  it  was  said  by  Parker,  C.  J., 
that  creditors  might  have  arrested  the  transaction  by  an  execution  levied 
in  the  intermediate  time  ;  but  there  was  a  question  of  fraud  in  the  case, 
evidence  of  which  would,  it  is  conceived,  always  invalidate  such  a  trans- 
action ;  and  the  remarks  on  Wilt  v.  Franklin  in  M'Kinney  «.  Rhoads,  5 
Watts  345,  were  directed  to  the  want  of  delivery  in  that  case,  apart 
from  which,  it  is  said,  that  the  decision  is  perfectly  correct.  Where, 
moreover,  a  deed  is  delivered  as  an  escrow^  although,  as  is  stated  in  the 
text,  it  relates  back  to  the  time  of  the  original  delivery  :  Foster  v.  Mans- 
field, 4  Met.  412  ;  Graham  v.  Hughes,  13  Johns.  235  ;  yet  it  must  be 
borne  in  mind  that  this  is  for  certain  purposes  only — that  this  fiction  is 
resorted  to  in  cases  of  necessity,  to  prevent  injury  and  uphold  the  deed  ; 
as,  for  instance,  where  a  feme  sole  delivers  a  deed  as  an  escrow,  and 
marries  before  the  condition  is  performed,  it  is  her  deed  from  the  first 
delivery,  as  otherwise  her  marriage  would  defeat  it:  Perkins  139-140; 
"  for  in  such  case  from  necessity,  and  ut  res  magis  vahat  qiiam  pereai, 


O  SMITH  S    LAW    OF    CONTRACTS. 

never  becomes  a  deed  at  all.     Thus,  at  a  meeting  for 
executing  a  composition  deed,  for  performance  of  which 


to  this  intent  by  fiction  of  law,  it  shall  be  a  deed  ah  initio,  and  yet  in 
truth  it  was  not  her  deed  until  the  second  delivery  :"  Butler  and  Baker's 
case,  3  Co.  36  a.  Hence,  in  accordance  with  the  maxim,  in  Jictione  juris 
semper  eqnitas  existat,  such  relation  back  will  not  operate  to  defeat  the 
rights  of  third  persons  attaching  in  the  interval:  Frost  v.  Beekman,  1 
Johns.  (Jh.  296  ;  Green  v.  Putnam,  1  Barb.  504 ;  Lewis  v.  Taylor,  Riley's 
Ch.  179;  Carr  v.  Iloxie,  5  Mason  60;  3Ierrills  v.  Swift,  supra;  and 
thus  in  Jackson  v.  Rowland,  6  Wend.  666,  where  a  deed  was  delivered 
as  an  escrow,  and  previously  to  its  subsequent  absolute  delivery  a  judg- 
ment was  obtained  against  the  gi'antor,  under  which  the  land  was  sold, 
it  was  held  that  the  purchaser  under  this  judgment  took  a  good  title  to 
the  land  ;  and  so  in  Shirley's  Lessee  v.  Ayres,  14  Ohio  307. 

AVhere  a  deed  is  rejected  by  the  grantee,  the  title  revests  in  the  grantor, 
provided  the  dissent  be  made  by  the  party  really  in  interest.  Thus, 
where  a  conveyance  was  to  A.  to  the  use  of  B.,  A.'s  dissent  was  not 
allowed  to  defeat  the  use  limited  to  B. :  Gorton's  case,  2  Roll.  Ab.  789, 
pi.  7.  In  these  cases  of  rejection  the  question  also  arises  as  to  inter- 
mediate interests  and  estates  created  by  the  deed.  In  Thompson  v. 
Leach,  2  Ventr.  201,  it  was  finally  held  in  the  House  of  Lords,  reversing 
the  judgments  below,  that  a  deed  of  surrender  by  tenant  for  life  to  a 
I'emainderman,  barred  intermediate  contingent  remainders,  though  the 
grantee  rejected  the  deed  when  he  knew  of  it ;  and  in  Read  v.  Robinson, 
6  W.  &  S.  329,  a  debtor  executed  a  general  assignment  for  the  benefit  of 
his  creditors,  and  delivered  it  to  one  of  his  sons,  -vVith  instructions  to 
take  it  to  one  Ward,  who  had  been  making  out  his  father's  accounts. 
Ward  took  the  deed  to  the  assignee,  who  refused  to  receive  it,  and  said 
he  would  have  nothing  to  do  with  it.  An  assignee  was  then  appointed 
by  the  Court,  who  brought  trover  against  the  executor  of  the  grantor's 
will,  executed  after  the  assignment.  The  Court  below  ordered  a  non- 
suit, on  the  ground  of  the  refusal  of  the  assignee;  but  this  judgment 
was  reversed  by  the  Supreme  Court,  which  held,  that  although  by  the 
rejection  the  title  might  have  been  remitted  to  the  grantor  in  ease  the 
grantee  were  the  party  beneficially  interested,  yet  that  the  instrument 
being  a  trust  for  creditors,  the  latter  were  the  parties  in  interest,  and 
that  by  the  transmission  of  the  deed  for  acceptance  to  the  assignee,  the 
title  instantly  passed  at  law,  and  it  could  not  be  divested  by  the  subse- 
quent disagreement  by  the  assignee ;  thus  showing,  as  was  said  by  the 
Chief  Justice,  in  speaking  of  Thompson  v.  Leach,  "  that  intermediate 
interests  may  fasten  on  the  title,  which  it  is  not  in  the  power  of  the 
grantee's  disagreement  to  unclasp." 

It  has  been  suggested  by  Professor  Greenleaf,  in  his  edition  of  Cruise 


ON    CONTRACTS    BY   DEED.  5 

the  defendant  was  to  be  surety,  it  was  signed  and  sealed 
by  him;  but  it  had  been  previously  agreed  that  the  deed 
should  not  be  operative  unless  all  the  creditors  sealed 
it,  and  it  was  then  delivered  to  one  of  the  creditors,  in 
order  that  he  might  get  it  executed  by  the  others. 
This  he  failed  to  effect,  and  in  an  action  against  the 
defendant  the  deed  was  held  to  be  a  mere  escrow,  (.s) 
And  even  wdiere  a  subscribing  witness  to  a  bond  stated 
that  it  was  attested,  sealed  and  delivered  in  the  usual 
way,  no  other  words  than  those  which  are  usual  on  the 
^execution  of  a  bond  being  used  by  the  defendant  [-.j-q-, 
when  he  executed  the  instrument,  but  that  before 
and  at  the  time  of  the  execution  it  was  agreed  that  it 
should  remain  in  his  (the  subscribing  witness')  hands, 
until  the  death  of  Lord  Stair,  and  until  certain  promis- 
sory notes  were  given  up,  and  that  the  bond  was  placed 
in  his  hands  upon  that  condition,  the  Court  held  that  it 
was  a  question  of  fact  upon  the  whole  evidence  whether 
the  bond  was  delivered  as  a  deed  to  take  effect  from  the 
moment  of  delivery,  or  whether  it  was  delivered  upon 
condition  that  it  was  not  to  operate  as  a  deed  until  the 
death  of  Lord  Stair,  and  until  the  notes  were  delivered 
up.(«)     At  a  new  trial  of  the   case,  the   Lord   Chief 

(2)  Johnson  v.  Baker,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  440. 

(a)  Murray  v.  E.  of  Stair,  2  B.  &  C.  (9  E.  C.  L.  R.)  82;  Xenos  v. 
Wickham,  33  L.  J.  (C.  P.)  13  (Ex.  Ch.)  ;  13  C.  B.  N.  S.  (106  E.  C.  L. 
R.)  435;  L.  R.  2  H.  L.  296. 

on  Real  Property  (tit.  xxxii.  ch.  1,  §  25,  note,  that  Thoinjj.-ion  v.  Lcaoh 
was  not  the  case  of  the  grant  of  an  estate  from  the  absolute  owner  to  a 
stranger  who  hud  no  previous  interest  in  it,  but  it  was  the  annihilation 
of  a  particuhir  estate  in  favor  of  a  person  to  whom,  on  the  termination 
of  that  estate,  at  that  time,  by  what  mode  soever,  the  whole  property 
would  belong  by  its  original  limitation,  and  that  the  case  of  Read  r. 
Robinson  was  rather  decided  upon  a  local  statute,  authorizing  the  Court, 
in  case  of  renunciation  or  refusal  of  a  trustee,  to  appoint  a  new  one  in 
his  place.  The  Court  did  not,  however,  rest  its  decision  wholly  on  that 
ground. — R. 


9  smith's  law  of  contracts. 

Justice,  Lord  Tenterden,  told  the  jury  that  if  the  in- 
strument was  delivered  as  the  deed  of  the  defendant 
binding  on  him  at  the  time,  although  it  was  delivered  on 
the  faith  and  confidence  which  he  reposed  in  the  attest- 
ing witness  (who  w^as  his  attorney),  that  he  would  not 
part  with  it  until  the  death  of  Lord  Stair,  and  until  the 
notes  were  delivered  up,  it  immediately  became  the  de- 
fendant's deed.  And  although  the  witness  in  fact  parted 
with  it  before  Lord  Stair's  death,  and  before  the  delivery 
up  of  the  notes,  in  violation  of  the  trust  reposed  in  him, 
it  was  still  the  defendant's  deed.  But  if  the  delivery 
r:;:|()-|  itself  at  the  time  was  conditional,  so  as  '''not  to 
constitute  any  present  obligation,  it  was  an  es- 
crow or  writing  merely,  and  not  a  deed,  and  the  condi- 
tion of  the  delivery  having  been  broken  it  had  never 
become  the  deed  of  the  defendant.  But  in  order  to 
make  the  delivery  conditional,  it  was  not  necessary  that 
any  express  words  should  be  used  at  the  time ;  the 
conclusion  was  to  be  drawn  from  all  the  circumstances. 
It  obviated  all  questions  as  to  the  intention  of  the  party, 
if  at  the  time  of  delivery  he  expressly  declared  that  he 
delivered  it  as  an  escrow ;  but  that  ivas  not  essential  to 
make  it  an  escrow.  And  therefore,  where  a  deed  exe- 
cuted by  one  party  is  sent  to  the  agent  of  the  other  in 
a  lettej  explaining  that  it  is  executed  only  on  condition 
of  a  counterpart  being  executed  by  the  latter,  such  evi- 
dence has  been  considered  sufficient  to  show  that  it  was 
sent  only  as  an  escrow  to  take  effect  after  execution  of 
the  counterpart.  (J) 

This  conditional  delivery  must  be  to  some  third  per- 
son ;  for,  if  it  were  to  the  party  himself  who  is  to  be 
benefited  the  deed  would  become  absolute,  though  the 

[h)  Furnef^s  v.  Meek,  27  L.  J.  (Ex.)  34.     See  Millersliip  v.  Brookes, 
'1\)  L.  J.  (Ex.)  369. 


ON    CONTRACTS    BY   DEED.  10 

party  delivering  were  to  say  in  express  terms  that  he 
intended  it  to  be  conditional  only ;  for  it  is  impossible 
by  words  to  get  rid  of  the  legal  operation  of  the  de- 
livery ;(c)  and,  therefore,  where  the  defendant  in  debt' 
on  bond  endeavored  to  set  up  a  deliveiy  as  an  escrow 
to  the  obligee  himself,  *the  Court  thought  that  r-.^,-,  -,  -, 
the  plea  was  so  clearly  bad,  that  they  would  not 
hear  any  argument  upon  the  subject.  Where,  however, 
the  deed  is  delivered  to  a  third  person  as  an  escrow,  the 
delivery  is,  as  I  said,  conditional ;  and  when  the 
condition  has  been  performed,  it  becomes  absolute  and 
takes  effect,  not  from  the  date  of  performing  the  condi- 
tion,  buflrom  the  date  of  the  original  deli^^  so  much 
so,  thafTt  has  been  held,  that  where  a  bond  was  deliv- 
ered upon  condition,  and  the  obligor  and  obligee  were 
both  dead  before  the  condition  was  performed,  yet,  on 
that  event  happening,  it  became  the  deed  of  the  deceased 
obligor,  so  as  to  create  a  charge  upon  his  assets  as  against 
his  representatives,  (c/) 

It  is  therefore  clear  that  in  order  to  make  a  writing 
sealed  and  delivered  an  escrow  merely,  it  is  not  neces- 
sary that  express  words  should  be  used.  You  are  to 
look  at  all  the  facts  attending  the  execution,  and  to  all 
that  took  place  at  the  time,  and  therefore,  although  it  be 
in  form  an  absolute  delivery,  if  it  can  reasonably  be  in- 
ferred  that  the  writing  was  not  to  take  effect  as  a  deed 
till  a  certain  condition  should  be  performed,  it  will 
operate  as  an  escrow. (e)^ 

(c)  Holford  i\  Parker,  Hob.  246  ;  and  Co.  Litt.  36  a. 

(d)  See  Graham  v.  Graham,  1  Ves.  jun.  272  ;  Froset  v.  Walsh,  Bridg. 
51. 

(e)  Bowkcr  v.  Burdekin,  11  M.  &  W.  128;  Giidgeij  v.  Besset,  26  L. 
J.  (Q.  B.)  36  ;  G  E.  &  B.  (88  E.  C.  L.  R.)  986.  See  Pym  v.  Campbell 
25  L.  J.  (Q.  B.)  277  ;  6  E.  &  B.  (88  E.  C.  L.  R.)  370. 

^  The  iwint  decided  in   Bowkcr    v.  Burdekin  was.  that  a  deed  which 
2 


11  smith's  law  of  contracts. 

p...-|  c,-.        Such,  then,  being  the  essentials  of  a  deed — 
^tvriting  on  paper  or  parchment,  sealing  and  de- 


was  executed  as  an  absolute  conveyance,  would  not  the  less  be  an  act  of 
bankruptcy,  because,  on  looking  at  the  form  of  the  deed,  the  conclusion 
might  possibly  be  come  to,  that  the  parties  did  not  contemplate  that  the 
deed  should  operate  as  an  act  of  bankruptcy  unless  the  whole  partner- 
ship effects  were  conveyed.  The  remark  cited  supra,  was  said  by  Baron 
Parke,  to  be  the  result  of  the  cases  of  Johnson  v.  Baker,  4  B.  &  Aid.  (6 
E.  C.  L.  R.)  440  ;  and  Murray  v.  The  Earl  of  Stair,  2  B.  &  C  (9  E.  C.  L. 
R.)  82,  in  both  of  which  cases,  the  instrument  was  not  delivered  to  the 
party  interested,  but  left  with  a  stranger  ;  and  it  must  not  be  inferred, 
from  the  remark  in  Bowker  v.  Burdekin,  that  a  deed  purporting  to  be 
absolute,  and  delivered  to  a  party,  can  by  parol  evidence,  be  shown  to 
have  been  conditional,  as  the  contrary  was  expressly  held  in  Ward  v. 
Lewis,  4  Pickering  520,  where  an  insolvent  debtor  having  executed  an 
assignment  for  the  benefit  of  his  creditors,  which  was  found  in  the  hands 
of  the  assignee,  it  was  held  that  the  deed  could  not  operate  as  an  escrow, 
because  i\iQ  prima  facie  evidence  was  that  it  was  delivered  to  the  party, 
and  that  parol  evidence  was  inadmissible  to  show  that  the  assignment 
was  meant  to  take  effect  only  upon  the  assent  of  the  majority  of  the 
creditors. — r. 

A  deed  can  never  be  delivered  to  the  grantee  himself  as  an  escrow ;  if 
intended  to  operate  as  such,  it  must  be  delivered  to  a  third  person  for 
him  :  Jordan  v.  Pollock,  14  Ga.  145 ;  Firemans'  Ins.  Co.  v.  M'Millan,  29 
Ala.  147  ;  Thomason  v.  Dill,  30  Ala.  444  ;  Duncan  v.  Pope,  47  Ga.  445. 
If  delivered  to  the  grantee,  no  matter  what  maybe  the  form  of  the 
words  accompanying  the  act,  the  delivery  will  be  absolute:  Dawson  v. 
Hall,  2  Mich.  390.  It  is  not  admissible  to  show,  by  parol  evidence,  that 
a  deed  was  delivered  to  the  party,  on  any  condition  contrary  to  the 
terms  of  the  instrument:  Worrall  v.  Mann,  1  Seld.  229;  Warren  v. 
Miller,  38  Me.  108  ;  Black  v.  Shreve,  2  Beas.  455  ;  Braman  v.  Bingham, 
26  N.  Y.  483.  An  unconditional  delivei'v  of  a  deed  to  a  third  person  for 
the  use  of  the  grantor,  and  the  acceptance  implied  by  bringing  suit  upon 
it,  will  constitute  a  sufficient  delivery,  and  the  acceptance  may  be  pre- 
sumed from  the  beneficial  nature  of  the  transaction  :  Tibb.als  r.  Jacobs, 
31  Conn.  428;  Guard  v.  Bradley,  7  Ind.  600;  Wall  v.  Wall,  30  Miss. 
91  ;  Stewart  v.  Weed,  II  Ind.  92.  To  make  the  delivery  of  a  deed 
effectual  the  grantor  must  part  with  all  control.  He  cannot  reserve  to 
himself  the  power  of  recalling  it ;  if  he  does  so  the  delivery  is  ineffectual : 
Cook  V.  Brown,  34  N.  II.  460;  Brown  v.  Austen,  35  Barb.  341.  Any 
act  or  words,  by  which  a  grantor  indicates  an  intention  to  deliver  a  deed 
is  prima  facie  a  delivery:  Mallett  v.  Page,  8  Ind.  364;  Dearmond  w. 
Doarmond,  10  Iliid.  191  ;  Stevens  v.  Hatch,  6  Minn.  64.     If  a  bond  in- 


ON    CONTRACTS   BY    DEED.  12 

livery — it  is  right  to  add,  that,  for  the  sake  of  conveni- 
ence, deeds  are  divided  into  two  classes,  Deeds  Poll  and 
Indentures,  a  Deed  Poll  being  made  by  one  party  only, 
an  Indenture  between  two  or  more  parties.  (/)  The 
names  indeed  of  Deed  Poll  and  Indenture  were,  as  you 
probably  all  know,  derived  from  the  circumstance  that 
the  former  was  shaved  or  foiled,  as  the  old  expression 
was,  smooth  at  the  edges,  whereas  the  latter  was  cut  or 
indented  with  teeth  like  a  saw ;  for,  in  the  very  old 
times,  when  deeds  were  short,  it  was  the  custom  to 
write  both  parts  on  the  same  skin  of  parchment,  and  to 
write  a  word  in  large  lettei's  between  the  parts ;  and 
then,  this  word  being  cut  through,  saw  fashion,  each 
party  took  away  half  of  it ;  and  if  it  became  necessary 
to  establish  the  identity  of  the  instrument  at  a  future 
time,  they  could  do  so  by  fitting  them  together,  where- 
upon the  word  became  legible.  (^)  However,  this, 
though  the  origin  of  the  word  indenture,  has  become  a 
mere  form ;  and  though,  as  you  are  all  aware,  such  in- 
struments are  still  indented  by  nicking  the  edge  of  the 
parchment,  not  teethwise,  but  in  an  undulating  line,  that 

(/)  Co.  Litt.  35  b ;  Shepp.  Touch.  50  ;  Williams,  Real  Property,  p. 
146,  8th  ed. 

{g)  Co.  Litt.  229  a;  2  Bl.  Comm.  295. 

tended  as  an  escrow  be  delivered  by  the  obligor  to  the  obligee,  on  an 
agreement  that  the  latter  will  hand  it  to  a  third  person  as  depositary,  it 
will  operate  as  an  escrow:  Brown  v.  Reynolds,  5  Sneed  639.  So  the 
delivery  of  the  deed  to  the  grantor  for  examination  is  no  delivery  : 
Graves  v.  Dudley,  20  N.  Y.  76.  So  to  await  execution  by  another 
party :  Bracket  v.  Barney,  28  Ibid.  333.  For  other  cases  on  the  sub- 
ject of  escrows  see  Chandler  i'.  Chandler,  21  Ark.  95  :  Dyson  v.  Brad- 
shaw,  23  Cal.  528  :  Berry  v.  Anderson,  22  Ind.  30  ;  Leubat  v.  Kipp,  9 
Fla.  60 ;  Hathaway  t\  Payne,  34  N.  Y.  92 ;  Fitch  v.  Bunch,  30  Cal.  208  ; 
Resor  v.  Ohio  Co.,  17  Ohio  St.  139;  Abbott  t;.  Alsdorf,  19  Mich.  157; 
Demesmey  v.  Gravelin,  56  111.  93 ;  Staunton  r.  Miller,  65  Barb.  58  : 
Roberts  v.  Mullenix,  10  Kan.  22. 


io  SMITHS    LAW    OF    CONTRACTS. 

pjj.i  o-i  is  a  mei'e  form,  and  might  (as  it  was  said)  {h)  be 
done  in  Court  during  the  *progress  of  a  trial  if  it 
had  been  forgotten  till  then.  Now,  however,  it  is  ex- 
pressly enacted (z),  "that  a  deed  executed  after  the  1st 
day  of  October  1845,  purporting  to  be  an  indenture, 
shall  have  the  effect  of  an  indenture,  although  not  actu- 
ally indented." 

There  are  one  or  two  peculiarities  of  contracts  made 
by  deed,  which,  as  they  apply  to  all  contracts  so  made, 
this  is  the  proper  place  to  notice. 

In  the  first  place,  a  contract  hy  deed  requires  no  con- 
sideration to  support  it  ;{Jc)  or  perhaps  it  might  be  more 
correct  to  say,  as  a  general  proposition,  that  the  law 
conclusively  presumes  that  it  is  made  upon  a  good  and 
sufficient    consideration.  (/)^      The   importance    of   this 

(7i)  Bac.  Abr.  Leases,  E.  2,  note.     But  see  54  Geo.  3,  c.  96. 

(/)  8  &  9  Vict.  c.  106,  s.  5. 

[k]  Shubrick  v.  Salmond,  3  Burr.  1639. 

(Z)  Cooch  V.  Goodman,  2  Q.  B.  (42  E.  C.  L.  R.)  590. 

^  The  proposition  in  italics,  was  properly  qualified  by  the  lecturer  in 
the  remainder  of  the  sentence.  At  common  law  no  consideration  Avas 
requisite  to  the  validity  of  a  deed,  but  since  the  introduction  of  convey- 
ances taking  effect  by  virtue  of  the  Statute  of  Uses,  courts  of  equity,  and 
then  courts  of  law,  have  held  a  consideration  necessary  to  support  such 
an  instrument.  It  need  not  be  expressed  in  the  deed,  but  may  be  proved. 
But  if  expressed,  the  language  of  the  instrument,  so  far  as  the  legal 
effect  of  the  deed  is  concerned,  is  conclusive  (Preston  on  Abstracts  14), 
and  although  in  America,  there  is  a  numerous  class  of  cases  deciding 
that  the  consideration  may,  by  parol,  be  shown  to  be  greater  or  less, 
than  is  expressed  (see  infra,  note  1,  to  page  17),  yet  on  neither  side  of 
the  Atlantic  is  such  evidence  admitted,  to  defeat  the  legal  effect  of  the 
deed  as  between  the  parties  :  Wilt  v.  Eranklin,  1  Binn.  502  ;  Hurn  v. 
Soper,  6  Harr.  &  Johns.  276.  Where  the  rights  oi  creditors  step  in,  the 
rule  is  different :  Preston,  supra,  1  Am.  Lead.  Cases  1.  This  is  merely 
mentioned,  in  order  that  conclusions  might  not  be  drawn  from  the  text 
which  the  lecturer  did  not  mean  to  convey,  and  on  page  82,  infra,  he 
refers  to  the  subject  again.  It  may  be  here  observed  that  there  is 
another  class  of  instruments  vilnah  priind  facie  presume  a  consideration 
equally  with  specialties,  viz. :  negotiable  instruments.  See  Mr.  Smith's 
remarks,  infra,  p.  97. — R. 


ON    CONTRACTS    BY    DEED.  13 

arises  from  the  strong  line  of  distinction  it  creates  hetween 
Contracts  hj  Deed  and  Simple  Contracts.  For  a  simple 
contract,  that  is,  a  contract  by  words  or  by  writing  not 
under  seal,  requires,  as  I  shall  hereafter  have  occasion 
to  explain  more  at  length,  (/;«)  a  consideration  to  support 
it  and  give  it  validity.  For  instance,  suppose  a  written 
promise  in  these  words: — "I,  A.  B.,  promise  C.  D.  that 
I  will  pay  the  debt  he  owes  to  E.  F."  This  promise 
would  be  absolutely  void  unless  it  could  be  shown  to 
have  been  made  in  consideration  of  something  given  or 
granted  to  A.  B.  for  making  it;  for  it  would  be  a  promise 
by  *him  to  undertake  a  liability  without  any  ^^\:^^-\ 
consideration  or  recompense  whatever;  and,  if 
he  neglected  to  perform  it,  no  action  would  lie  against 
him,  for  the  maxim,  ex  nudo  pacto  nan  oritur  actio,  would 
intervene  for  his  protection.  But,  if  to  that  very  instru- 
ment, conceived  in  those  very  words,  the  additional 
solemnity  of  sealing  and  delivery  were  added,  so  as  to 
make  it  a  deed,  it  would  become  a  good  and  binding 
covenant  on  which  an  action  might  be  supported  ;(?^) 
and  this  is  on  account  of  the  greater  formality  and 
solemnity  of  such  an  instrument  (o).^     The  reason  of 

(to)  Lectures  4  and  5. 
[n)  See  Fallowes  v.  Taylor,  R.  477- 

(o)  See  Sharington  v.  Strotton,  Plowd.  308  a  ;  Cruise,  Dig.  tit.  xxxii. 
c.  11,  ss,  54  and  55. 

^  Thus  in  Kennedy  v.  Ware,  1  Penn.  St.  445,  the  Court  refused  to  give 
effect  to  an  unsealed  assignment  of  a  judgment,  intended  as  an  advance- 
ment to  the  assignor's  daughter,  on  the  ground  that  although  natural 
love  and  affection  were  sufficient  in  a  sealed  instrument  to  raise  a  use, 
yet  that  they  of  themselves  formed  no  consideration  to  support  a  mere 
parol  gift. — R. 

Though  in  a  contest  with  creditors  a  bond  or  conveyance  without  con- 
sideration is  void,  yet  it  is  not  so  as  between  the  parties.  It  may  be, 
and  often  is  an  element  in  the  question  of  actual  fraud  or  duress. 
"  What  effect  has  want  of  consideration  by  the  common  law,  in  regard 
to  a  bond  or  a  judgment?     Certainly  none  to  destroy  the  conclusiveness 


14  smith's  law  of  contracts. 

these  different  rules  canuot  be  better  expressed  than  in 
the  words  of  Plowden :  "  There  are  two  ways  of  making 
contracts  or  agreements  for  lands  and  chattels.  The 
one  is  by  words,  which  is  the  inferior  method,  the  other 
is  by  writing  {i.  e.,  by  Deed),  which  is  the  superior,  and 
because  words  are  oftentimes  spoken  by  men  unadvis- 
edly and  without  deliberation,  the  law  has  provided  that 
a  contract  by  words  shall  not  bind  without  considera- 
tion. As  if  I  promise  to  give  £20  to  make  your  sale 
de  novo,  here  you  shall  not  have  an  action  against  me 
for  the  £20,  as  it  is  affirmed  in  17  Edward  IV.,  for  it  is 
a  nude  pact,  et  ex  nudo  pacto  non  oriticr  actio.  And  the 
reason  is,  because  it  is  by  words  which  pass  from  men 
lightly  and  inconsiderately;  but  where  the  agreement  is 
PI  51  *^-^  deed,  there  is  more  time  for  deliberation. 
For  when  a  man  passes  a  thing  by  deed,  first 
there  is  the  determination  of  the  mind  to  do  it,  and  upon 
that  he  causes  it  to  be  written,  which  is  one  part  of  de- 
liberation, and  afterwards  he  puts  his  seal  to  it,  which 
is  another  part  of  deliberation,  and,  lastly,  he  delivers 
the  writing  as  his  deed,  which  is  the  consummation  of 
his  resolution ;  and  by  the  delivery  of  the  deed  from 
him  that  makes  it  to  him  to  whom  it  is  made,  he  gives 
his  assent  to  part  with  the  thing  contained  in  the  deed 
to  him  to  whom  he  delivers  the  deed,  and  this  delivery 
is  as  a  ceremony  in  law  signifying  fully  his  good  will 
that  the  thing  in  the  deed  should  pass  from  him  to  the 


of  the  seal  or  of  the  recovery.  A  voluntary  bond  is,  both  in  equity  and 
at  law,  a  gift  of  the  money :"  Gibson,  C.  J.,  in  Sherk  v.  Endress,  3  W. 
&  S.  256  ;  Harrell  v.  Watson,  63  N.  C.  454 ;  Parker  v.  Flora,  Ibid.  474 ; 
Harris  v.  Harris,  23  Gratt.  737. 

A  voluntary  bond  from  a  father  to  his  child,  though  it  must  be  post- 
poned to  creditors,  yet  is  good  against  heirs,  legatees  and  all  who  stand 
in  no  higher  equity  than  the  obligor  himself:  Candor  &  Henderson's 
Appeal,  27  Penn.  St.  119  ;  Carter  v.  King,  11  llich.  (Law)  125. 


ON    CONTRACTS    BY    DEED.  lo 

other.     So  that  there  is  great  deliberation  used  in  the 
making  of  deeds,  for  which  reason  they  are  received  as 
a  lien  final  to  the  party,  and  are  adjudged  to  bind  the 
party  without  examining  upon  what  cause  or  considera- 
tion they  were  made.     And,  therefore,  in  the  case  put 
in  17  Edward  IV.,  put  it  thus,  that  I  by  deed  promise 
to  give  you  <£20  to  make  your  sale  cle  novo ;  here  you 
shall  have  an  action  of  debt  upon  this   deed,  and  the 
consideration  is  not  examinable,  for  in  the  deed  there  is 
a  sufficient  consideration,  viz.,  the  will  of  the  party  that 
made  the  deed.     And  so  where  a  carpenter,  by  parol 
without  writing  undertook'  to  build  a  new  house,  and 
for  not  doing  it  the  party  in  II  H.  IV.  brought  an  action 
of  covenant  against  the  carpenter.     There  it  does  not 
appear  that  he  should  have  anything  for  building    p.;.,  ^-| 
*the  house,  and  it  was   adjudged  the  plaintiff 
should  take  nothing  by  the  writ.     But  if  it  had  been 
by  specialty  it  would  have  been  otherwise.     So  that 
where  it  is  by  deed,  the  cause  or  consideration  is  not 
inquirable,  nor  is  it  to  be  weighed,  but  the  party  ought 
only  to  answer  to  the  deed,  and  if  he  confesses  it  to  be 
his  deed  he  shall  be  bound,  for   every  deed  imports  in 
itself  a  consideration,  viz.,  the  nvill  of  him  that  made  it, 
and,  therefore,  where  the  agreement  is  by  deed,  it  shall 
never  be  called  a  nudum  imctum.     And  in  an  action  of 
debt  upon  an  obligation,  the  consideration  upon  which 
the  party  made  the  deed  is  not  to  be  inquired,  for  it  is 
sufficient  to  say  that  it  was  his  will  to  make  the  deed,"(^;) 
Thus,  although  a  promise  to  make  a  woman  an  allow- 
ance for  her  maintenance  in  consideration  of  past  seduc- 
tion is  invalid,  joas^  seduction  being,  for  reasons  given 
in  another  place, (§')  no  consideration  in  law;  yet,  inas- 

(7.1)  Plowd.  308  a,  supra. 

iq)  Beaumont  v.  Reeve,  8  Q.  B.  (53  E.  C.  L.  R.)  483. 


16  SxMith's  law  of  contracts. 

much  as  an  instrument  under  seal  is  good  without  any 
consideration,  a  bond  for  maintenance  founded  on  pre- 
vious seduction  is  good.(r)^ 

There  are,  however,  some  deeds  deriving  their  effect 
from  the  Statute  of  Uses,  (s)  that  is,  a  bargain  and  sale, 
and  a  covenant  to  stand  seised  to  uses,  both  of  which 
[-.:.,  r— I  are  void  without  a  consideration;  *the  first  requir- 
ing a  pecuniary  one,  and  the  latter  a  considera- 
tion of  blood  or  marriage.  (?f)  Contracts  in  restraint  of 
trade  also  are  void,  if  made  without  consideration, 
although  under  seal.(w) 

But  here,  again,  you  must  observe  another  well-known 
and  important  distinction,  namely,  that  though  it  is  not 
necessary  to  show  on  what  consideration  a  deed  is 
founded,  a  party  sued  on  it  is  always,  on  his  part,  al- 
lowed to  show  that  it  was  founded  on  an  illegal  or  im- 
moral consideration,  or  that  it  was  obtained  by  duress 
or  by  fraud ;  for,  were  the  law  otherwise,  deeds  would, 
to  use  the  expression  of  Lord  Ellenborough,(:?;)  be  made 

(r)  Turner  v.  Vaughan,  1  Wills.  339  b.,  2d  part;  Nye  v.  Mosely,^  B. 
&  C.  (13  E.  C.  L.  R.)  133. 

(s)  27  Hen.  VIII.  c.  10. 

[t]  Shepp.  Touch.  510 ;  2  Bl.  Comm.  338. 

[u)  Mitchell  v.  Reynolds,  1  P.  Wms.  181.  See  Wallis  v.  Day,  2  M.  & 
W.  277  ;  Horner  v.  Graves,  7  Bing.  (20  E.  C.  L.  R.)  744 ;  Hutton  v.  Par- 
ker, 7  Dowl.  739 ;  Mallan  v.  May,  11  M.  &  W.  665.  See  Tallis  v.  Tallis, 
22  L.  J.  (Q.  B.)  185 ;  1  E.  &  B.  (72  E.  C.  L.  R.)  39. 

[x)  Paston  V.  Popham,  9  East  421. 

1  The  seduction  of  an  innocent  woman  by  a  pretended  marriage  is  a 
valuable  consideration  for  a  deed  subsequently  made  to  her  and  her 
children:  Doe  w.  Horn,  1  Cart.  363.  This  was  a  case  in  which  the 
question  arose  as  to  creditors,  and,  of  course,  as  to  them  being  third 
parties,  the  seal  was  unimportant.  A  seal  does  not  protect  an  illegal 
contract  founded  on  a  consideration,  contra  bonos  mores:  Gray  v.  Hook, 
4  Comst.  449.  There  is  one  American  case  which  accords  with  the  doc- 
trine that  past  cohabitation  is  not  a  good  consideration  to  support  a 
promise:  Singleton  v.  Bremar,  Harp,  201.  But  Shenk  v.  Mingle,  13  S. 
&  R.  29,  rules  expressly  the  contrary. 


ON    CONTRACTS    BY   DEED.  17 

use  of  as  covers  for  every  species  of  wickedness  and 
illegality.  It.  is  therefore  a  well-established  proposition, 
that  a  deed  may  be  invalidated  by  showing  that  it  is 
tainted  by  such  circumstances.  (,y)  And  it  signifies  not 
whether  the  illegality  objected  to  it  be  a  breach  of  the 
rules  of  common  law,  or  consist  in  the  contravention  of 
the  provisions  of  some  statute,  or  whether  the  prohibi- 
tion of  the  statute  be  expressed  in  direct  terms,  or  be 
left  to  be  collected  *from  a  penalty  being  inflicted  p:.-.  o-i 
on  the  offender.  (*)  Thus,  in  Collins  v.  Blantern,^ 
the  consideration  was  the  compromise  of  an  indictment 
for  perjury;  in  Coppock  v.  Bower, (rt)  the  compromise  of 
an  election  petition ;  in  Hindley  v.  M.  of  Westmeath,  [b] 
a  future  separation  between  husband  and  wife.(c-)  In 
these  cases  the  illegality  consisted  in  the  infringement 
of  the  rule  of  the  common  law,  which  looks  upon  such 
contracts  as  improper.  In  other  cases,  as  I  said,  the 
contravention  of  a  statute  has  been  held  equally  fatal : 
as,  of  the  statutes  against  gaming  ;(<:/)  of  the  Acts  for 
licensing  jDla^diouses ;  (e)  of  the  stat.  9  Anne,  c.  16,  for 
requiring  brokers  acting  within  the  city  and  liberties  of 

(//)  See  Collins  v.  Blantern,  2  Wils.  341  ;  1  Smith  L.  C.  310,  5th  ed. 

(z)  Bartlett  v.  Vinor,  Garth.  251  ;  Cundell  v.  Dawson,  4  C.  B.  (56  E.  C. 
L.  R.)  376 ;  Ritchie  v.  Smith,  6  C.  B.  (60  E.  C.  L.  R.)  462 ;  Cope  v.  Row- 
lands, 2  M.  &  W.  149  ;  M'Kinnell  v.  Robinson,  3  M.  &  W.  434. 

(a)  4  M.  &  W.  361.  (6)  6  B.  &  C.  (13  E.  C.  L.  R.)  200. 

(c)  See  Jones  v.  Waite,  5  Ring.  N.  C.  (35  E.  C.  L.  R.)  341  ;  4  M.  & 
Gr.  (43  E.  C.  L.  R.)  1104,  in  Dom.  Proc. ;  Wilson  v.  Wilson,  23  L.  J. 
(Ch.)  697. 

(d)  Colborne  v.  Stockdale,  Str.  493  ;  Mazzin^hi  v.  Stephenson,  1  Camp. 
291.  See  M'Kinnel  v.  Robinson,  3  M.  &  W.  434,  which,  however,  was  a 
simple  contract. 

(e)  Levy  v.  Yates,  8  A.  &  E.  (35  E.  C.  L.  R.)  129.  See  De  Begnis  v. 
Armistead,  10  Bing.  (25  E.  C.  L.  R.)  110,  per  Tindal,.C.  J. 

^  And  see  the  notes  to  that  case  in  1  Smith's  Leading  Cases  412,  4th 
Am.  ed. 


18  smith's  law  of  contracts. 

London  to  procure  themselves  to  be  admitted  by  the 
Lord  Mayor  and  Aldermen. (/)^     And  a  great  variety 

(/)  Cope  V.  Rowlands,  2  M.  &  W.  149. 

^  "  Every  contract,"  said  Lord  Holt,  in  Bartlett  v.  Viner,  Carth.  252, 
"  made  for  or  about  any  matter  or  thing  which  is  prohibited  and  made 
unlawful  by  any  statute,  is  a  void  contract,  though  the  statute  itself 
does  not  mention  that  it  shall  be  so,  but  only  inflicts  a  penalty  on  the 
offender,  because  a  penalty  implies  a  prohibition,  though  there  are  no 
prohibitory  words  in  the  statute  •,"  and  although  attempt's  have  been  at 
times  made  to  consider  these  words  as  mere  dicta,  yet  the  rule  thus  stated 
has  been  repeatedly  enforced :  Nerot  v.  Wallace,  3  Tr.  17  ;  Mitchell  v. 
Smith,  1  Binn.  1 18  ;  Foster  v.  Taylor,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  887  ; 
Cope  V.  Rowland,  2  M.  &  Wels.  158 ;  though  with  respect  to  cases  de- 
pending upon  the  English  revenue  laws,  there  appears  to  be  a  little  dis- 
crepancy of  decision  as  to  whether  those  acts  intended  to  vitiate  the 
contract,  or  to  impose  a  penalty,  for  the  purposes  of  the  revenue,  on  the 
party  offending:  Johnson  v.  Hudson,  11  East  180;  Brown  w.  Duncan, 
10  B.  &  C.  (21  E.  C.  L.  R.)  93  ;  Wetherell  v.  Jones,  3  B.  &  Aid.  (5  E.  C. 
L.  R.)  221 ;  Cope  v.  Rowland,  2  M.  &  Wels.  158  ;  Smith  v.  Mawhood,  14 
Id.  461.     Some  of  these  decisions  are  referred  to  in  a  very  recent  case  in 
the  Supreme  Court  of  the  United  States  (Harris  v.  Runnells,  12  How. 
84),  where,  as  a  defence  to  the  purchase-money  of  certain  slaves,  it  was 
set  up  that  no  certificate  had  been  obtained  previous  to  the  bringing  the 
slaves  into  the  State  of  Mississippi,  that  they  had  not  been  guilty  of  any 
crime,   &c.,  as  was  required  by  a  law  of  that  State,  which  imposed  a 
penalty  of  $100  for  every  slave  so  purchased  and  brought  in  ;  and  the 
Court,  in  holding  the  contract  itself  not  vitiated  by  this  statute,  said, 
"  We  have  concluded,  before  the  rule  can  be  applied  in  any  case  of  a 
statute  prohibiting  or  enjoining  things  to  be  done,  with  a  prohibition  and 
a  penalty,  or  a  penalty  only  for  doing  a  thing  which  it  forbids,  that  the 
statute  must  be  examined  as  a  whole,  to  find  out  whether  or  not  the 
makers  of  it  meant  that  a  contract  in  contravention  of  it  should  be  void, 
or  that  it  was  not  to  be  so.     In  other  words,  whatever  may  be  the  struc- 
ture of  the  statute  in  respect  to  prohibition  and  penalty,  or  penalty  alone, 
that  it  is  not  to  be  taken  for  granted  that  the  legislature  meant  that  con- 
tracts in  contravention  of  it  were  to  be  void,  in  the  sense  that  they  were 
not  to  be  enforced  in  a  court  of  justice.     In  this  way  the  principle  of  the 
rule  is  admitted,  without  at  all  lessening  its  force,  though  its  absolute 
and  unconditional  application  to  every  case  is  denied.     It  is  true  that  a 
statute,  containing  a  prohibition  and  a  penalty,  makes  the  act  which  it 
punishes  unlawful,  and  the  same  may  be  implied  from  a  penalty  without 
a  prohibition  ;  but  it  does  not  follow  that  the  unlawfulness  of  the  act  was 
meant  by  the  legislature  to  avoid  a  contract  made  in  contravention  of  it, 


ON    CONTRACTS    BY    DEED, 

of  examples  might  be  given,  but  these  are  sufficient  to 
establish  the  principle,  that,  though  a  man  cannot  de- 
fend himself  from  liability  upon  his  "^contract  r:^iQ-| 
made  by  deed,  by  saying  that  there  was  no  con- 
sideration for  it,^  he  may  by  saying  that  there  was  an 
illegal  one.'^     And  it  must  be  observed,  that  a  contract, 

when  the  statute  is  silent,  and  contains  nothing  from  which  the  contrary 
cati  be  properly  inferred,  a  contract  in  contravention  of  it  is  void." — r. 

To  determine  whether  a  contract  made  contrary  to  the  provisions  of  a 
penal  statute,  is  illegal  and  void,  the  statute  must  be  considered  as  a 
whole  to  ascertain  whether  it  was  intended  to  have  that  effect :  Vining  v. 
Brickei",  14  Ohio  (N.  S.)  331.  Such  intent  will  be  presumed  unless  the 
contrary  can  be  fairly  inferred  :  Bemis  v.  Becker,  1  Ivans.  226.  Courts 
will  not,  even  with  consent  of  the  parties,  enforce  a  contract  which  is  in 
violation  of  a  statute,  though  not  therein  declared  void  :  Fowler  v.  Scully, 
72  Penn.  St.  198. 

^  Nor  at  common  law  would  fraud  be  a  defence  to  an  action  on  a 
specialty,  unless,  indeed,  the  fraud  related  to  the  execution  of  the  instru- 
ment :  A'^x-ooman  v.  Phelps,  2  Johns.  178  ;  Rogers  v.  Colt,  1  Zabr.  704 ; 
but  in  many  of  our  States,  the  common  law  rule  as  to  the  solemnity  of  a 
seal  estopping  the  obligor  from  any  defence  except  those  named,  has 
been  relaxed  by  statutory  provisions,  so  as  to  entitle  the  obligor  of  a 
bond,  under  some  restrictions,  to  show,  by  way  of  defence,  its  failure,  as 
he  formerly  could  have  done  its  illegality  of  consideration. — r. 

^  The  often-quoted  remarks  of  Lord  Mansfield  upon  this  rule  may 
bear  repetition  here.  "  The  objection,"  said  he,  "that  a  contract  is  im- 
moral or  illegal  as  between  plaintiff  and  defendant,  sounds  at  all  times 
very  ill  in  the  mouth  of  the  defendant.  It  is  not  for  his  sake,  however, 
that  the  objection  is  ever  allowed,  but  it  is  founded  in  general  principles 
of  policy,  which  the  defendant  has  the  advantage  of,  contrary  to  the  real 
justice,  as  between  him  and  the  plaintiff,  by  accident,  if  I  may  so  say. 
The  principle  of  public  policy  is  this :  ex  dolo  malo  non  oritur  actio.  No 
court  will  lend  its  aid  to  a  man  who  founds  his  cause  of  action  upon  an 
immoral  or  an  illegal  act.  If,  from  the  plaintiff's  own  stating,  or  other- 
wise, the  cause  of  action  appears  to  arise,  ex  turpi  causa,  or  the  trans- 
gression of  a  positive  law  of  this  country,  then  the  court  says  he  has  no 
right  to  be  assisted.  It  is  upon  that  ground  the  court  goes,  not  for  the 
sake  of  the  defendant,  but  because  they  will  not  lend  their  aid  to  such  a 
plaintiff.  So,  if  the  plaintiff  and  defendant  were  to. change  sides,  and  the 
defendant  was  to  bring  his  action  against  the  plaintiff,  the  latter  would 
then  have  the  advantage  of  it ;  for  where  both  are  equally  in  fault, 
^j)otior  est  conditio  defendentis ;'  "  Ilolman  v.  Johnson,  Cowp.  343  ;  Gray 
V.  Hook,  4  Comst.  449. — r. 


19  smith's  law  of  contracts. 

althougli  not  expressly  prohibited  by  a  statute,  may  be 
illegal,  if  opposed  to  the  general  policy  and  intent 
thereof,  as  if  made  to  insure  to  one  creditor  of  a  bank- 
rupt a  greater  share  of  his  debt  than  the  others  can 
have;(^)  or  a  contract  made  in  order  to  enable  another 
to  infringe  that  policy  and  intent.  (/^)  These  contracts 
are  invalid,  and  cannot  be  sued  upon,  although  under 
seal.  Even  if  there  were  several  considerations,  and 
any  one  of  them  was  illegal,  it  avoids  the  whole  instru- 
ment ;  for  it  is  impossible  to  say  how  much  or  how  little 
weight  the  illegal  portion  may  have  had  in  inducing  the 
execution  of  the  entire  contract. (z)  Though  it  is  just 
the  reverse  where  the  consideration  is  good,  and  there 
are  several  covenants,  some  legal,  some  illegal :  for  then 
the  illegal  promises  alone  will  be  void,  and  the  legal 
valid.  (>^'')^  As  when,  upon  a  dissolution  of  partnership, 
one  partner  purchased  the  other's  moiety,  and  the  latter 

ig)  Staines  v.  W^ainewright,  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  174.  See 
Ex  parte  Oliver,  Re  Hodgson,  4  De  G.  &  S.  354. 

(7i)  M'Kinnell  v.  Robinson,  3  M.  &  W.  434 ;  De  B^gnis  v.  Armistead, 
10  Bing.  {25  E.  C.  L.  R.)  110. 

[i]  Waite  v.  Jones,  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  662,  per  Tindal,  C. 
J. ;  Shackell  v.  Rosier,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  634-,  Howden  v. 
Haigh,  11  A.  &  E.  (39  E.  C.  L.  R.)  1033. 

{k)  Gaskell  v.  King,  11  East  165 ;  How  v.  Synge,  15  East  440. 

^  Where  covenants,  illegal  as  against  public  policy,  enter  into  and  form 
a  part  of  the  entire  consideration  of  a  contract  and  both  parties  are  in 
fault,  the  contract  is  wholly  void.  A  separation  of  the  good  considera- 
tion from  that  which  is  illegal  will  be  attempted  only  in  those  cases  in 
which  the  party  seeking  to  enforce  the  contract  is  not  the  wrongdoer  : 
Saratoga  County  Bank  v.  King,  44  N.  Y.  '87 ;  Marsh  v.  Russell,  2  Lans. 
340.  A  contract  based  in  part  upon  an  illegal  transaction  is  void  in  toto  ; 
but  if  based  in  part  on  a  void  ti-ansaction  is  void  only  pro  tanto :  Doty  v. 
Knox  Bank,  1  Ohio  St.  133-,  Bank  v.  Stegall,  41  Miss.  142.  If  part  of 
a  single  consideration  is  illegal  the  whole  promise  fails :  Chandler  i\ 
Johnson,  39  Ga.  85,  and  see  Gilpike  v.  Dubager,  1  Wall.  S.  C.  221  ; 
Decker  v.  Morton,  1  Redfield  (N.  Y.  Sur.)  477  ;  Kottwite  v.  Alexander, 
34  Tex.  689; 


ON    CONTRACTS    BY    DEED.  19 

covenanted  not  to  cany  on  a  similar  trade  within  the 
^cities  of  London  and  Westminster,  or  within  _..^^-, 
600  miles  thereof,  the  Exchequer  Chamber  held  L  ^  J 
that  the  covenant  was  void  as  to  the  600  miles,  as  an 
unreasonable  restraint  of  trade;  but  good  as  to  the  cities 
of  London  and  Westminster.  (^) 

The  next  quality  of  a  contract  of  deed  is  its  operation 
by  way  of  estoppel ;  the  meaning  of  which  is,  that  the 
person  executing  it  is  not  permitted  to  contravene  or 
disprove  what  he  has  there  asserted,  though  he  may  do 
so  where  the  assertion  is  in  a  contract  not  under  seal. 
A  good  example  of  this  is  the  case  of  a  receipt.  A  cred- 
itor  who  has  given  a  receipt  not  under  seal  is  neverthe- 
less permitted  to  prove  that  he  has  not  received  the 
money  ;(m)  but  it  is  otherwise  if  the  receipt  be  by  deed, 
for  then  the  law  admits  no  evidence  to  the  contrary.  (;i)^ 

[V]  Price  v.  Green,  16  M.  &  W.  34G ;  Nicholls  v.  Stretton,  10  Q.  B.  (59 
E.  C.  L.  R.)  346. 

(wi)  Graves  v.  Key,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  313  ;  Stratton  v.  Ras- 
tall,  2  T.  R.  366 ;  Farrer  v.  Hutchinson,  9  A.  &  E.  (36  E.  C.  L.  R.)  641 ; 
Bowes  V.  Foster,  27  L.  J.  (Ex.)  262  ;  2  H.  &  N.  779  ;  Lee  v.  Lancashire 
and  Yorkshire  Rail.  Co.,  L.  R.  6  Ch.  527. 

(?i)  See  the  judgment  of  the  Court  in  Fitch  v.  Sutton,  5  East  230. 

'  The  current  of  authority,  however,  on  this  side  of  tlie  Atlantic,  has 
much  relaxed  the  strictness  of  the  English  cases  on  this  subject.  Thus 
it  may  be  considered  as  settled,  notwithstanding  some  early  cases  to  the 
contrary,  that  evidence  is  admissible,  either  on  the  part  of  the  grantor  or 
the  grantee,  to  show  that  the  consideration  named  in  the  deed  was  really 
greater  or  less  than  is  there  expressed  :  Bullard  v.  Briggs,  7  Pick.  533  ; 
Wade  V.  Mervin,  11  Id.  288  ;  Clappw.  Tirrell,  20  Id.  247  ;  McCrea  v.  Pur- 
mort,  16  Wend.  460  (where  many  authorities  are  cited  and  commented 
on)  ;  Burbank  v.  Gould,  15  Me.  117  ;  Delden  v.  Seymour,  8  Conn.  310; 
Meeker  i'.  Meeker,  16  Ibid.  383 ;  Beach  v.  Packard,  10  Verm.  96  ;  Bing- 
ham V.  Weiderwax,  1  Coms.  509;  Watson  v.  Blain,  12  S.  &  R.  131  ;  Jack 
V.  Dougherty,  3  Watts  158  :  Bolton  v.  Johns,  5  Penn.  St.  145 ;  Harvey  v. 
Alexander,  1  Rand.  219  ;  Wilson  v.  Shelton,  9  Leigh  342  ;  Curry  v.  Lyles 
2  Hill  (S.  C.)  404  ;  3Ioore  v.  McKee,  5  Sm.  &  M.  438  ;  unless  such  evi- 
dence is  introduced,  either  directly  or  indirectly,  for  the  purpose  of  de- 
feating the  operation  of  the  instrument  as  a  conveyance,  as  by  showing 


20  smith's  law  of  contracts.     ' 

Such  is  the  nature  of  what  we  call  an  esiojjpel  created 
by  deecl,(o)  the  principle  of  which  is  explained  by  Tauli- 
ton,  J.,  in  Bowman  v.  Taylor,  [p]  "  The  principle,"  said 
|-^4^1-,  his  Lordship,  "is  not  so  unjust  or  absurd  as  it 
has  been  too  *much  the  custom  to  represent. 
The  principle  is,  that,  where  a  man  has  entered  into  a 
solemn  engagement  by  and  under  his  hand  and  seal  as 
to  certain  facts,  he  shall  not  be  permitted  to  deny  any 
matter  he  has  so  asserted."  Therefore,  for  example,  if 
a  distinct  statement  of  a  particular  fact  is  made  in  the 
recital  of  a  bond  or  other  instrument  under  seal,  and  a 
contract  is  made  with  reference  to  that  recital,  it  is  un- 
questionably true,  that,  as  between  the  parties  to  that 
instrument,  and  in  an  action  upon  it,  it  is  not  competent 
for  the  party  bound  to  deny  the  recital.  (§')     But  an 

(o)  Shelley  v.  Wright,  Willes  9  ;  Hill  v.  Manchester  and  Salford  Water- 
works, 2  B.  &  Ad.  (22  E.  C.  L.  R.)  544. 

[p]  2  A.  &  E.  (29  E.  C.  L.  R.)  278. 

(q)  Carpenter  v.  Buller,  8  M.  &  W.  209 ;  Pilbrow  v.  Pilbrow's  Atmo- 
spheric R.  C,  5  C.  B.  (57  E.  C.  L.  R.)  440 ;  Young  v.  Raincock,  7  C.  B. 
(62  E.  C.  L.  R.)  310 ;  StronghiU  v.  Buck,  19  L.  J.  (Q.  B  )  209  •,  14  Q. 

it  void  for  want  of  a  sufficient  consideration  :  Wilt  v.  Franklin,  1  Binn. 
502 ;  Hurn  v.  Soper,  6  Harr.  &  Johns.  276.  Thus  a  grantee  may  prove 
the  expressed  consideration  to  be  greater,  for  the  purpose  of  increasing 
his  damages  on  the  covenants  in  the  deed  :  Belden  v.  Seymour,  8  Conn. 
310;  while  on  the  other  hand  the  grantor  may  prove  it  less  for  the  pur- 
pose of  diminishing  them  :  Morse  v.  Shattuck,  14  N.  H.  229  ;  Harlow  v. 
Thomas,  15  Pick.  70. — r. 

See  Murphy  v.  Branch  Bank  of  Mobile,  16  Ala.  90;  Wooden  v:  Spot- 
well,  3  Zabr.  465 ;  In  re  Young's  Estate.  3  Md.  Ch.  D.  461  ;  Hammond 
V.  Woodman,  41  Me.  177  ;  Harwell  v..  Fitts,  20  Ga.  723  ;  Farrington  v. 
Barr,  36  N.  H.  86  ;  Thompson  v.  Allen,  12  Ind.  539.  The  consideration 
clause  in  a  deed  estops  the  grantor  from  denying  that  a  consideration  has 
been  received.  In  all  other  respects,  it  is  open  to  explanation  or  correc- 
tion by  parol  evidence,  and  it  may  be  shown  that  the  consideration  has 
not  been  actually  paid,  or  that  it  has  been  overpaid  by  fraud  or  mistake  : 
Goodspeed  v.  Fuller,  46  Me.  141 ;  Irvin  v.  McKeon,  23  Cal.  472 ;  and  see 
Carbrey  v.  Willis,  7  Allen  364 ;  Allen  v.  Allen,  45  Penn.  St.  468 ;  Dodge 
V.  Walley,  22  Cal.  224 :  Simon  v.  Eckstein,  Ibid.  580. 


ON    CONTRACTS    BY   DEED.  21 

allegation  must,  in  order  to  operate  as  an  estoppel,  be 
clear,  distinct  and  definite,  (r)  As  where  A.  having  an 
equitable  estate  in  fee  in  certain  lands,  mortgaged  them 
to  B.,  reciting  in  the  instrument  of  mortgage  that  he  was 
legally"  or  equitably  entitled  to  them.  He  afterwards 
obtained  the  legal  estate,  and  conveyed  the  latter  to  C. 
The  Court  of  King's  Bench  held  that,  there  being  in  the 
instrument  of  mortgage  no  certain  and  precise  averment 
of  any  seisin  in  A.,  but  merely  a  recital  that  he  was 
legalhj  or  equitably  entitled,  C,  who  claimed  under  A., 
was  not  estopped  from  setting  *up  against  B.  the  r-.^ooi 
legal  estate  so  acquired  by -him.  (5)  Such  a  re- 
cital is  indeed  the  hypothesis  upon  which  the  contract 
is  made  by  the  parties ;  and  therefore  it  would  quite 
overthrow  their  mutual  intention,  if,  in  the  absence  of 
fraud,  the  recital  could  be  denied.  For  the  same  reason, 
the  estoppel  has  no  effect  in  matters  not  depending  upon 
that  contract ;  thus  even  a  party  to  a  deed  is  not  es- 
topped in  an  action  by  another  party,  not  founded  on 
the  deed  but  wholly  collateral  to  it,  from  disputing  the 
facts  so  admitted  therein.  (^)  In  such  case  evidence  of 
the  circumstances  under  Avhich  the  admission  was  made, 
is  receivable  to  show  that  it  was  inconsiderately  made, 
and  is  not  entitled  to  weight  as  a  proof  of  the  fact  it  is- 
used  to  establish,  (m)  For  the  same  reason,  if  all  the 
facts  appear  by  the  deed,  a  party  thereto  is  not  estopped 
from  averring  them  although  they  are  contradictory  to 
some  part  of  the  deed.(.t:)     An  instructive  instance  of 

B.  (68  E.  C.  L.  R.)  781.  See  per  Wood,  V..C.,  in  Carter  v.  Carter,  3 
Kay  &  J.  617,  645  ;  27  L.  J.  (Ch.)  74,  84. 

(r)  Right  d.  Jeffereys  v.  Bucknell,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  278  : 
Lainson  v.  Tremere,  1  A.  &  E.  (28  E.  C.  L.  R.)  792. 

(s)  2  B.  &  Ad.  (22  E.  C.  L.  R.)  278,  supra. 

[t)  Carter  v.  Carter,  supra;  Eraser  v.  Pendleliury,  31  L.  J.  (C.  P.)  1. 

(«)  Carpenter  v.  Biiller,  supra. 

[x]  Co.  Litt.  3o2  b ;  Par-cter  v.  Harris,   7  Q.  B.  (53  E.  C.  L.  R.)  708  ; 


22  smith's  law  of  contracts. 

;in  estoppel  is  afforded  by  the  case  of  Wiles  v.  Wood- 
ward. (^)  In  this  case  the  plaintiff  and  defendant  had 
been  in  partnership  together  as  paper  manufacturers  and 
r::;9c>-|  '''ii'ou  merchants.  The  partnership  was  dissolved 
by  deed,  by  which  it  was  recited  that  an  agree- 
ment had  been  made  that  the  defendant  should  have  all 
the  stock  in  trade  of  the  business  of  paper  merchants, 
but  that  the  plaintiff  should  receive  paper  out  of  that 
stock  to  the  value  of  £898  4s.  lit?.,  which  was  to  re- 
main in  the  paper  mill  for  a  year.  On  the  other  hand, 
the  plaintiff  was  to  have  the  stock  in  trade  in  the  iron 
business.  The  deed  further  recited,  that,  in  pursuance 
of  that  arrangement,  imper  of  that  value  had  been  delivered 
to  the  plaintiff,  and  that  the  same  then  tvas  in  the  paper 
mill,  as  the  plaintiff  thereby  acknowledged.  It  then  con- 
tained an  assignment  by  the  defendant  to  the  plaintiff 
of  all  the  stock  in  trade  of  the  iron  business,  and  by  the 
plaintiff  to  the  defendant  of  all  the  stock  in  trade  of  the 
paper  making  business,  except  the  <£898  -is.  lid.  worth 
of  paper  delivered  to  the  plaintiff,  and  mutual  releases, 
and  a  dissolution  of  the  old  partnership.  In  fact  no 
paper  had  been  delivered  or  set  apart ;  and  in  an  action 
of  trover  for  it,  it  was  contended  by  the  defendant,  that 
no  certain  quantity  having  become  the  property  of  the 
plaintiff,  no  definite  paper  could  be  said  to  be  his ;  and 
consequently,  that  an  action  of  trover,  not  being  an 
action  on  the  deed,  and  which  implies  that  the  thing 
sued  for  is  the  plaintiff"'s,  could  not  be  supported.  But 
the  Court  of  Exchequer  considered  that  the  parties  were 
estopped  by  the  deed,  not  merely  in  action  thereon,  but 

Dancer  v.  Hastings,  4  Bing.  (13  E.  C.  L.  R.)  2  ;  Jolly  v.  Arbuthnot,  4 
De  G.  &  J.  224  ;  Morton  v.  Woods,  L.  R.  3  Q.  B.  658  ;  4  lb.  293  (Ex. 
Ch.)  :  37  L.  J.  (Q.  B.)  242  ;  38  lb.  81  ;  Rowbotham  v.  Wilson,  27  L.  J 
(Q.  B.)  61,  per  Watson,  B.  ;  8  E.  &  B.  (92  E.  C.  L.  R.)  123. 
[y)  5  Esch.  557. 


ON    CONTRACTS    BY    DEED.  24 

*in  this  proceeding,  which  was  to  enforce  the  r-.v-oAn 
rights  arising  out  of  it.  "A  recital,"  said  Parke, 
B.,  delivering  the  judgment  of  the  Court,  "  when  it  is 
of  a  fact  agreed  upon  by  both,  binds  both ;  and  the 
present  claim  is  not  collateral  to  the  deed,  as  in  Car- 
penter V.  Buller.  It  is,  therefore,  an  estoppel  on  both. 
The  parties  have  agreed,  with  respect  to  the  stock  in 
trade  in  the  paper  business,  that  they  should  stand  pre- 
cisely in  the  same  situation  as  if  the  stock  had  been 
divided,  and  that  part  amounting  to  the  stipulated  sum 
had  been  delivered  to  the  plaintiff;  and,  being  in  that 
situation,  the  question  is  what  their  respective  rights 


*  One  of  the  most  frequent  occurring  instances  of  estoppel  in  pais,  or, 
as  it  should  be  in  this  case  more  correctly  termed,  equitable  estoppel,  is 
the  rule  which,  in  its  general  application,  prohibits  the  tenant  from  deny- 
ing his  landlord's  title,  and  which,  although  it  has  been  supposed  to  have 
been  feudal  in  its  origin,  seems  to  have  arisen  in  later  times.  See  Judge 
Hare's  note  to  Duchess  of  Kingston's  case,  2  Smith's  Lead.  Cas.  569, 
4th  ed.  ;  Morris  on  Replevin  121.  "The  principle  was  of  necessity  called 
into  being  by  that  feature  of  the  action  of  ejectment  which  requires  an 
absolute  possessory  title  in  the  plaintiff,  and  makes,  in  its  absence,  the 
mere  fact  of  possession  decisive  in  favor  of  the  defendant.  The  result  of 
allowing  the  tenant  to  deny  the  right  of  the  landlord,  in  an  ejectment  for 
the  land,  would  therefore  be  to  take  the  estate  from  the  latter,  and  confer 
it  on  the  former,  whenever  there  was  a  defect,  either  in  the  title  itself,  or 
the  proof  bi-ought  forward  to  sustain  it.  This  would  obviously  be  equally 
inconsistent  with  public  policy  and  private  faith,  and  would  prevent  men 
iroui  letting  their  property,  even  when  they  are  unable  to  use  it  them- 
selves. When,  therefore,  possession  is  obtained  under  a  lease,  the  lessee 
is  estopped  from  keeping  the  land  in  violation  of  the  agreement  under 
which  it  was  acquired  :"  Note  to  Duchess  of  Kingston's  case. 

The  rule,  therefore,  is  a  very  general  one  with  respect  to  an  ejectment 
brought  by  the  landlord  against  the  tenant  (unless,  indeed,  in  the  case 
where  the  assent  of  the  latter  is  produced  by  the  fraud  or  misrepresenta- 
tion of  the  former :  Miller  v.  M'Brien,  14  S.  &  R.  382 ;  Hockenberg  v. 
Snider,  6  Watts  44),  and  also  with  respect  to  action's  brought  by  the 
landloi-d  to  recover  the  rent,  for  the  "  mischief  to  which  the  absence  of 
such  a  rule  as  between  landlord  and  tenant  must  lead,  would  evidently 
lie  that  a  tenant,  having  obtained  the  possession  from  his  landlord,  could 
3 


24  smith's  law  of  contracts. 

Before  quitting  this  head  of  Estoppel,  it  must  be  ob- 
served that  as  the  deed  takes  effect  from  the  delivery, 


betray  it  to  another,  and  thus  drive  the  former  to  an  ejectment  to  regain 
the  possession.  The  result  would  be  that  no  landlord  would  ever  be  safe 
from  the  prospect  of  litigation.  Hence  the  tenant's  obligation  to  restore 
to  him  the  possession  :"  Rawle  on  Covenants  for  Title  235.  It  may 
also  be  observed  that  where  the  lease  is  by  indenture,  the  law  of  "  estop- 
pel by  deed"  applies:  Jordan  v-  Twells,  Rep.  Temp.  Hardw.  161  ;  Pal- 
mer V.  Elkins,  2  Raym.  1351.  And  where  the  action  is  assumpsit-for 
use  and  occupation,  the  issue  sought  to  be  raised  by  the  question  of 
title  is  an  immaterial  one:  Lewis  v.  Willis,  1  Wils.  314;  Doe  w.  Smythe, 
4  M.  &  S.  347  ;  Cobb  v.  Arnold,  7  Mete.  398. 

The  rule  only  operates,  however,  to  debar  the  tenant  from  denying 
the  title  at  the  time  of  possession  given,  and  he  is  at  liberty  to  show  that 
it  has  since  expired  or  been  defeated:  Walton  v.  Waterhouse,  1  Wms. 
Saond.  418,  note ;  Hollicraft  v.  Keep,  2  M.  &  S.  767  ;  Jackson  v.  Row- 
land, 6  Wend.  666  ;  Devatch  v.  Newson,  3  Hamm.  57  ;  Randolph?;.  Carl- 
ton, 8  Ala.  606  •,  or  such  circumstances  as  amount  to  a  constructive  evic- 
tion, as  by  being  compelled  to  make  payments  to  a  mortgagee,  ground 
landlord,  &c. :  Doe  v.  Barton,  11  Ad.  &  Ell.  (39  E.  C.  L.  R.)  314 ;  Mayor 
of  Poole  V.  White,  15  M.  &  W.  577  ;  Waddilove  v.  Barnett,  2  Bing.  N. 
C.  (29  E.  C.  L.  R.)  538  ;  Franklin  v.  Carter,  1  C.  B.  (50  E.  C.  L.  R.) 
760;  -Jones  V.  Clark,  20  Johns.  51;  Magill  v.  Hinsdale,  6  Conn.  469; 
Smith  V.  Sheppard,  15  Pick.  147  :  Weld  v.  Adams,  1  Mete.  494;  George 
V.  Putnay,  4  Cush.  355  ;  Greno  v.  Munson,  9  Verm.  37 ;  Chambers  v. 
Pleak,  6  Dana  428.— r. 

One  entering  as  a  sub-tenant  is  in  like  manner  estopped  from  denying 
the  title  of  the  paramount  landlord  :  Millhouse  v.  Patrick,  6  Rich.  350. 
When  one,  however,  alreatly  in  possession,  acknowledges  himself  to  be 
the  tenant  of  another,  he  may  destroy  the  effect  of  such  acknowledg- 
ment by  showing  that  it  was  procured  by  fraud,  or  proceeded  from  a 
clear  mistake  as  to  title  :  Givens  v.  Mullinux,  4  Rich.  590.  The  gra- 
tuitous payment  of  rent  by  one  in  possession  of  real  estate  does  not  estop 
him  from  showing  the  true  character  in  which  he  holds  the  premises: 
Shelton  v.  Carroll,  16  Ala.  148.  And  see  upon  the  general  principle  of 
a  tenant's  being  estopped  from  controverting  his  lessor's  title :  Cody?;. 
Quarterman,  12  Ga.  386  ;  Freeman  v.  Heath,  13  Ired.  498 ;  Sims  v.  Gla- 
zener,  14  Ala.  695  ;  Pope  v.  Haskins,  16  Id.  321  ;  Hoen  v.  Simmons,  1 
Cal.  119;  Henley  w.  The  Branch  Bank,  16  Ala.  552.  A  tenant,  after 
the  tenancy  has  terminated,  and  he  has  restored  the  possession  to  his 
landlord,  may  assert  a  title  paramount  against  him,  and  the  previous 
tenancy  cannot  bar  his  right  to  recover  :  Smith  v.  Mundy,  18  Ibid.  182  ; 
Page  V.  Kinsman,  43  N.  H.  328.     He  may  show  also  that  the  landlord's 


ON    CONTRACTS    BY    DEED.  24 

not  from  the  date,  neither  party  can  be  estopped  from 
showing  the  real  date  of  the  delivery,  although  by  doing 
so  a  very  different  meaning  may  be  given  to  the  deed 
from  that  which  ^Yould  be  gi^en  to  it  if  the  parties  were 
estopped  from  denying  that  the  date  was  the  time  from 
which  the  deed  commenced  in  effect.  Thus,  where  a 
charter-party,  dated  6th  February,  contained  a  covenant 
that  a  ship  should  proceed  from  Demerara,  where  she 
then  lay,  on  or  before  12th  February,  the  defendant 
was  allowed  to  show  that  the  charter-party  was,  in 
fact,  not  executed  till  loth  March,  and  that  therefore 
the  condition  as  to  the  tim'e  of  sailing  was  dispensed 
with.(^) 

*But  notwithstanding  the  strong  terms  in  p9_--| 
which  estoppel  is  often  described  as  peculiar  to 
a  deed,  it  must  not  be  supposed  that  a  party  cannot  be 
estopped  by  any  other  act,(«)  although  estoppel  by 
deed  is  much  the  most  frequent.  ''  Touching  estoppels, 
which  is  an  excellent  and  curious  part  of  learning,"  says 

(z)  Hall  V.  Cazenove,  4  East  477. 

{a)  M'Cance  v.  London  and  Northwestern  Railway,  34  L.  J.  (Ex.) 
39. 

title  has  expired,  or  that  he  has  sold  his  interest  to  another :  Ilorner  c. 
Leeds,  1  Dutch.  106  ;  Russel  v.  Allard,  18  N.  H.  222.  He  may  purchase 
his  landlord's  title  at  sale  on  execution,  and  may  set  up  the  title  thus 
acquired  against  his  landlord  :  Elliott  v.  Smith,  23  Penn.  St.  131  : 
Wolf  V.  Johnson,  30  Miss.  513  ;  Bettison  v.  Budd,  17  Ark.  546.  A  ten- 
ant may  show  that  his  landlord's  title  has  ceased,  even  though  he  has 
paid  rent  to  the  assignee  :  M'Devit  v.  Sullivan,  8  Cal.  592.  If  one  in 
possession  under  claim  of  title  is  by  fraud  or  mistake  induced  to  believe 
that  another  has  a  better  title,  and  therefore  to  take  a  lease  from  him, 
the  tenant  will  not  be  estopped  by  that  lease  from  denying  the  lessor's 
title:  Alderson  v.  Miller,  15  Gratt.  279;  Pearce  v.  Nix,  34  Ala.  183; 
Cramer  v-  Carlisle  Bank,  2  Grant  267  ;  Shultz  v.  Arnot,  33  Mo.  172; 
Cain  V.  Gimon,  36  Ala.  168.  A  tenant  is  not  estopped  from  denying  the 
title  of  his  landlord  after  he  has  surrendered  possession  :  Zimmerman  v. 
Markland,  23  Ind.  474. 


/ 


25  smith's  law  of  contracts. 

Lord  Coke,(^)  "it  is  to  be  observed  that  there  be  three 
kinds  of  estoi3pels,  viz.,  by  matter  of  record,  by  matter 
in  writing  {i.  e.,  by  deed),  and  by  matter  in  pais.     By 
matter  of  record,  viz.,  by  letters  patent,  fine,  recovery, 
pleading,  taking  of  continuance,  confession,  imparlance, 
warrant  of  attorney,  admittance" — some  of  which  re- 
cords are  now  obsolete.     "By  matter  in  writing,  as  by 
deed,"  of  which  we  have  already  treated.     "By  matter 
in  pais,  as  by  livery,  by  entry,  by  acceptance  of  rent,  by 
partition,  by  acceptance  of  an  estate,  whereof  Littleton 
maketh    a   special    observation,   that   a   man   shall   be 
estopped  by  matter  in  the  country  without  any  writing." 
Of  estoppel,  by  matter  of  record,  it  is  not  requisite  to 
say  more;  but  one  or  two  examples  of  estoppel  in  pais 
will  be  useful,  both  as  showing  that  the  force  of  an 
estoppel  is  not  peculiar  to  a  deed,  and  as  illustrating 
still  further  the  grounds  and  reasons  of  estoppel  by  deed 
itself.     In  Pickard  v.  Sears  (c)  it  was  laid  down  by  the 
r-r-nPT    Court  of  Queen's  Bench  that  *the  rule  of  law  is 
clear,  "that,   where  one,  by  his   words  or  con- 
duct, wilfully  causes  another  to  believe'  the  existence  of 
a  certain  state  of  things,  and  induces  him  to  act  on  that 
belief  so  as  to  alter  his  own  previous  position;  the  former 
is  concluded  from  averring  against  the  latter  a  different 
state  of  things  as  existing  at  the  same  time."     "By  the 
term  '"wUfidly^  however,  in  that  rule,  we  must  under- 
stand, if  not  that  the  party  represents  that  to  be  true, 
which  he  knows  to  be  untrue,  at  least  that  he  means  his 
representation  to  be  acted  upon,  and  that  it  is  acted 
upon  accordingly;  and  if  whatever  a  man's  real  inten- 
tion may  be,  he  so  conducts  himself  that  a  reasonable 

(6)  Co.  Litt.  352. 

(c)  6  A.  &  E.  (33  E.  C.  L.  R.)  474  :  Heane  v.  Rogers,  9  B.  &  C.  (17  E. 
C.  L.  R.)  586. 


ON   CONTRACTS    BY    DEED.  26 

man  would  take  the  representation  to  be  true,  and  be- 
lieve that  it  was  meant  that  he  should  act  upon  it,  and 
did  act  upon  it  as  true,  the  party  making  the  represen- 
tation would  be  equally  precluded  from  contesting  its 
truth;  and  conduct  by  negligence  or  omission,  w'here 
there  is  a  duty  upon  a  person  by  usage  of  trade  or 
otherwise  to  disclose  the  truth,  may  often  have  the 
same  effect.  As,  for  instance,  a  retiring  partner  omit- 
ting to  inform  his  customers  of  the  fact  in  the  usual 
mode  that  the  continuing  partners  are  no  longer  author- 
ized to  act  as  his  agents,  is  bound  by  all  contracts  made 
by  them  with  third  persons,  on  the  faith  of  their  being 

so  authorized In  truth,  in  most  cases  to  which 

the  doctrine  in  Pickard  v.  Sears  is  to  be  applied,  the 
representation  is  such  as  to  amount  to  the  con-  ^^■^^-)':-\ 
tract  *or  license  of  the  party  making  it."((:/) 
Again,  where  a  railway  company  had  been  deceived  by 
a  forged  transfer  into  registering  shares,  and  granting 
certificates  of  registration  of  the  shares,  in  the  names 
mentioned  in  the  forged  transfer,  whereby  innocent  per- 
sons were  induced  to  purchase  those  shares,  under  the 
belief  that  the  vendors  w^ere  registered  shareholders; 
it  was  held  that  the  principle  above  .laid  down  was  ap- 
plicable, and  that  the  company  w^ere  estopped  by  their 
own  act  from  denying  the  right  of  the  innocent  trans- 
ferees of  the  shares  to  be  registered  as  shareholders.  ((?)^ 

(d)  See  the  judgment  of  Parke,  B.,  in  Freeman  v.  Cooke,  2  Ex.  663. 
.  (e)  In  re  Bahia,  &c.,  Rail.  Co.,  L.  R.  3  Q.  B.  584;  37  L.  J.  (Q.  B.) 
176  ;  see  also  for  other  illustrations  of  the  rule :  AVebb  v.  Ilerne  Bay 
Commissioners,  L.  R.  5  Q.  B.  642 ;  39  L.  J.  (Q.  B.)  221  ;  Hart  v.  Fron- 
tino,  &c.,  Co.,  L.  R.  5  Ex.  Ill  ;  39  L.  J.  (Ex.)  93  ;  Aspitel  v.  Bryan,  32 
L.  J.  (Q.  B.)  91  ;  33  lb.  328  ;  Phillips  v.  im  Thurn,  L-R.  1  C.  P.  463  ; 
35  L.  J.  (C.  P.)  220. 

'  It  is  not  necessary  to   an   estoppel  that  the   party  should  design  to 
mislead,  if  his  act  was  calculated  to  mislead  and  actually  has  misled 


27  smith's  law  of  contracts. 

The  next  peculiarity  in  a  contract  by  deed  is  its  effect 
in  creating  a  merger.  This  happens  when  an  engage- 
ment has  been  made  by  way  of  simple  contract,  that  is, 
by  words  in  writing  not  under  seal,  and  afterwards  the 
very  same(/)  engagement  is  entered  into  between  the 
same  parties  by  a  deed.  When  this  happens,  the  simple 
contract  is  merged,  lost,  sunk,  as  it  were,  and  swallowed 
up   in   that   under   seal,   and   becomes    totally   extin- 

(/)  See  Yates  v.  Aston,  4  Q.  B.  (45  E.  C.  L.  R.)  182. 


another  acting  upon  it  in  good  faith:  Bank  v.  Hazard,  30  N.  Y.  226; 
contra,  Plumer  v.  Lord,  9  Allen  455;  Turner  v.  Coffin,  12  Ibid.  401  ; 
Rice  V.  Bunn,  49  Mo.  231  ;  Continental  Bank  v.  Bank  of  Commonwealth, 
50  N.  Y.  575.  Although  there  is  a  seeming  conflict  in  the  decisions,  jet 
the  decided  weight  of  authority  is  that  a  party  is  not  estopped  by  his  acts 
or  declarations  from  showing  the  truth,  unless  such  acts  or  declarations 
were  intended  to  influence  the  conduct  of  another,  or  he  had  reason  to 
believe  they  would  :  Kuhl  v.  Mayor,  23  N.  -J.  (Eq.)  84.  Silence  alone 
will  not  postpone  unless  in  cases  where  it  is  a  fraud  ;  but  positive  acts 
of  encouragement  bar  the  assertion  of  a  right  even  though  they  were 
done  with  no  fraudulent  intent:  Maple  v.  Kussart,  53  Penn.  St.  348  ; 
Chapman  v.  Chapman,  59  Ibid.  214.  A  party  has  no  right,  in  his  deal- 
ings with  another,  to  state  a  fact  to  be  true,  which  he  does  not  know  to 
be  true,  and  which  fact  may  influence  the  conduct  of  the  other  party. 
If  such  a  fact  be  stated  to  obtain  a  benefit  at  the  expense  of  the  other 
party  and  to  his  prejudice,  and  it  appears  that  there  was  no  reasonable 
or  probable  ground  for  ^  belief  in  the  existence  of  such  fact,  the  infer- 
ence is  that  there  was  no  belief,  and  the  statement  under  such  circum- 
stances has  the  eflfect  of  and  may  be  properly  treated  as  a  fraud  :  Nugent 
V.  Cincinnati  R.  R.  Co.,  2  Disney  302 ;  Rice  v,  Bunce,  49  Mo.  231.  See 
further  as  to  estoppels  in  pais :  Heath  v.  Derry  Bank,  44  N.  H.  174  ; 
Judovine  v.  Goodrich,  35  Verm.  19  ;  Shaw  v.  Beebe,  Ibid.  205;  Woodey 
V.  Edson,  Ibid.  214;  Lesley  v.  Johnson,  41  Barb.  (N.  Y.)  359;  Whitacre 
V.  Culver,  8  Minn.  133  ;  Hazelton  v.  Batchelder,  44  N.  H.  40;  Spiller  v. 
Scribner,  36  Verm.  245  ;  Mason  v.  Williams,  8  Jones  (Law)  478  ;  Ed- 
wards V.  Evans,  16  Wis.  181  ;  Martin  v.  Tellerback,  38  Cal.  300;  Simp- 
son V.  Pearson,  31  Ind.  1  ;  Austin  v.  Thomson,  45  N.  H.  113  ;  Cain  v. 
Buzby,  30  Ga.  714  ;  Martin  v.  Fox  Co.,  19  Wis.  552 ;  Casco  Bank  v. 
Keen,  53  Maine  103;  Garlinghouse  v.  Whitewell,  51  Barb.  208;  Ridg- 
way  V.  Morrison,  28  Ind.  201 ;  Moore  v.  Bowman,  47  N.  H.  494 ;  Darrah 
V.  Bryant,  56  Penn.  St.  69;  Young  v.  Foote,  43  111.  33;  M'Cabe  v. 
Raney,  32  Ind.  309. 


ON    CONTRACTS    BY    DEED.  28 

guished((/).  ^Suppose,  for  instance,  I  give  my  ra-.ir^Q-i 
creditor  a  promissory  note  for  50/.,  and  then  a 
bond  for  the  same  demand,  the  note  is  lost,  swallowed 
up  in  the  bond,  and  becomes  totally  extinct  and  use- 
less. (/^)  Or,  if  a  devisee,  in  trust  to  sell  lands  and  pay 
debts  of  the  devisor  out  of  the  proceeds,  borrow  money 
for  that  purpose,  and  by  indenture  between  him  and  the 
lender  charges  the  land  w^ith  the  amount,  and  covenants 
to  pay  the  money  borrowed  out  of  such  money  as  shall 
come  to  his  hands  as  such  trustee,  the  claim  of  the 
lender  is  upon  the  covenant,  and  the  simple  contract 
which  arose  from  the  borrowing  is  sunk  in  the  special 
agreement;  (^)  But  the  engagement  by  deed  must  be 
so  completely  identical  with  that  by  the  simple  contract, 
that  the  remedy  upon  the  deed  must  be  co-extensive 
with  the  remedy  upon  the  simple  contract,  else  there  is 
no  merger.  (A")  ^     Thus,  where  a  banker  takes  from  a  cus- 

{g)  Price  v.  Moulton,  20  L.  J.  (C.  B.l  102  ;  10  C.  B.  (70  E.  C.  L.  R.) 
561. 

[h)  Bayley  on  Bills,  6th  edition  334. 

(/)  Mathew  v.  Blackmore,  26  L.  J.  (Ex.)  150  ;  1  H.  &  N.  76. 

[k)  Ansell  v.  Baker,  15  Q.  B.  (69  E.  C.  L.  R.)  20.  See  Boaler  v. 
Mayor,  34  L.  J.  (C.  P.)  230. 

^  Curson  v.  Monteiro,  2  Johns.  308  ;  Bray  v.  Bates,  9  Mete.  250 ;  and 
see  passim  the  notes  to  Cumber  v.  Wane,  in  1  Smith's  Lead.  Cas.  The 
operation  of  this  principle  of  law,  and  the  distinction  between  a  merger 
and  a  satisfaction  of  a  debt,  have  been  thus  ably  pointed  out  by  Gibson, 
C.  J.,  in  Jones  v.  Johnson,  3  W.  &  S.  277  :  "  There  is  a  substantial  dis- 
tinction, which  I  have  not  seen  particularly  noticed,  between  cases  of 
extinguishment  by  merger  of  the  security,  and  cases  of  extinguishment 
by  satisfaction  of  the  debt.  These  classes,  though  depending  on  different 
principles,  have  usually  been  confounded,  and  hence  a  perceptible  want 
of  precision  in  the  language  of  those  who  have  written  or  spoken  of  them. 
In  the  first  of  them  the  original  security  is  extinguished,  but  the  debt 
remains:  in  the  second,  the  debt  as  well  as  the  security  is  extinguished 
by  the  acceptance  of  another  debt  in  payment  of  it.  Extinguishment  by 
merger  takes  place  between  debts  of  diiierent  degrees,  the  lower  being 
lost  in  the  higher,  and,  being  by  act  of  law,  it  is  dependent  on  no  par- 


28  smith's  law  of  contracts. 

tomer  and  a  surety  a  bond  for  payment  of  all  sums  ad- 
vanced, or  to  be  advanced,  to  the  customer,  there  is  no 

ticular  intention  ;  extinguishment  by  satisfaction  takes  place  indifferently 
between  securities  of  the  same  degree  or  of  different  degrees,  and,  being 
by  act  of  the  parties,  it  is  the  creature  of  their  will.  No  expression  of 
intention  would  control  the  law  which  prohibits  distinct  securities  of 
different  degrees  for  the  same  debt;  for  no  agreement  would  prevent  an 
obligation  from  merging  in  a  judgment  on  it,  or -passing  in  rem  Judicu- 
tam.  Neither  would  an  agreement,  however  explicit,  prevent  a  promis- 
sory note  from  merging  in  a  bond  given  for  the  same  debt  by  the  same 
debtor;  for,  to  allow  a  debt  to  be,  at  the  same  time,  of  different  degrees, 
and  recovei'able  by  a  multiplicity  of  inconsistent  remedies,  would  increase 
litigation,  unsettle  distinctions,  and  lead  to  embarrassment  in  the  limita- 
tion of  actions,  and  the  distribution  of  assets.  But  as  the  existence  of  a 
promissory  note  as  a  concurrent  security  for  a  book  debt  produces  no 
such  consequences,  it  operates  no  extinguishment  by  act  of  the  law  ;  and 
it  depends  on  the  assent  of  the  parties,  tacit  or  explicit,  whether  the  new 
evidence  of  the  debt  is  accepted  in  discharge  of  the  old  one.  It  is  true 
there  are  presumptions  which  operate  even  in  cases  of  intention,  as  prima 
/acie  evidence  on  the  one  side  or  the  other;  for  instance,  that  a  bond 
given  by  a  stranger  after  the-  debt  incurred  was  accepted  as  collateral 
security.  These,  however,  are  legal  presumptions  of  mere  facts  to  be 
drawn  by  the  jury  under  the  direction  of  the  court,  and  not,  as  in  merger, 
presumptiones  juris  et  de  jure,  which  are  so  absolute  that  they  cannot 
be  rebutted. 

"But,  merger  takes  place  only  where  the  debt  is  one,  and  the  parties 
to  the  securities  are  identical.  Hence  there  is  no  extinguishment  where 
a  stranger  gives  bond  for  a  simple  contract  debt,  or  confesses  a  judgment 
for  a  debt  by  specialty.  In  either  case  the  original  debt  may  be  extin- 
guished by  the  subsequent  one,  but  not  by  merger,  which  works  a  disso- 
lution not  of  the  debt,  but  of  the  original  security,  whose  existence  sinks 
into  that  of  the  succeeding  one,  and  for  that  purpose  the  union  must  be 
so  intimate  that  the  one  cannot  be  separated  from  the  other.  In  &  case 
of  merger,  therefore,  the  debt  is  the  same,  though  the  old  evidence  of  it 
melts  into  the  new  one,  and  the  creditor  merely  gains  a  higher  security 
without  having  an  indivisible  debt  of  different  degrees,  but  such  a  result 
is  not  obtained  where  the  debt  is  compounded  of  new  responsibilities,  as 
it  must  be  where  all  the  parties  were  not  originally  bound.  When  the 
debtor  is  bound  with  a  stranger,  or  for  a  different  sum,  his  responsibility, 
is  changed  in  more  respects  than  the  quality  of  the  security.  The  differ- 
ence, on  the  whole,  consists  in  this,  that  in  a  case  of  merger  there  is  a 
change  only  of  the  security ;  but,  in  a  case  of  satisfaction  by  substitu- 
tion, there  is  a  change  of  the  debt." 

But  although  the  intention  of  the  parties   cannot   prevent  the  opera- 


ON    CONTRACTS    BY    DEED,  28 

merger,  for  the  special  contract  differs  from  the  simple  1 
in  securing  the  payment  of  other  and  additional  moneys, 
and  also  from  another  and  additional  person.  (/)      So  also 
when  two  out  of  three  simple  contract  debtors  gave  a  I 
specialty  security  *for  the  debt,  it  was    held,    r*9g-| 
that  the  simple  contract  liability  was  not  merged  ' 

in  the  specialty,  and  that  an  action  lay  on  the  simple  ' 
contract,  (m) 

Another  peculiar  incident  to  a  contract  by  deed  is, 
that  its  obligation  cannot  be  got  rid  of  by  any  matter  of 

(Z)  Holmes  v.  Bell,  3  M.  &  G.  (42  E.  C.  L.  R.)  2U  ■  Norfolk  Railway 
v.  M'Namara,  3  Ex.  628. 

(w)  Sharps.  Gibbs,  C.  P.  12  W.  R.  711. 

tion  of  a  merf;;er  when  a  higher  security  is  taken  for  a  lower  one,  on  the 
ground  that  there  cannot  be  two  distinct  liabilities  for  the  same  debt,  yet 
it  is  also  undoubtedly  settled  that  it  may  be  shown  that  the  higher  secu- 
rity is  taken  as  collateral  for  the  payment  of  the  lower,  that  is  to  say, 
that  it  is  a  new  security  for  a  new  debt,  intended  to  protect  the  first : 
Yates  V.  Aston,  4  Q.  B.  196;  Ansel  v.  Baker,  15  Id.  20;  Railway  Co.  v. 
M'Namara,  3  Exch.  627  ;  U.  S.-  v.  Lyman,  1  Mason  505  ;  Averill  o. 
Loucks,  6  Barb.  470;  Butler  v.  Miller,  5  Denio  159;  although  the  pre- 
sumption where  the  bond  is  between  the  same  parties,  and  for  the  same 
sum,  is  that  the  new  security  was  taken  as  a  satisfaction  :  Frisbie  v. 
Larned,  21  Wend.  450;  Stewart's  Appeal,  3  W.  &  S.  476;  Bond  v. 
Aitken,  6  Id.  165  ;  Butler  v.  Miller,  supra;  Price  v.  Moulton,  2  Eng.  L. 
&  Eq.  R.  307. 

A  very  common  instance  of  the  operation  of  merger  occurs  in  the  sale 
of  real  estate,  when  by  the  acceptance  of  the  deed  which  consummates 
the  transaction  the  articles  of  agreement  are  annulled  :  Howes  v.  Barker, 
3  Johns.  506  ;  Iloughtaling  v.  Lewis,  10  Johns.  299  ;  Wilson  v.  M'Neal, 
10  Watts  427 ;  Creigh  v.  Beelin,  1  W.  &  S.  83  ;  AVilliams  v.  Morgan,  15 
Q.  B.  (69  E.  C.  L.  R.)  789 ;  unless  in  case  of  fraud  or  mistake :  Lee  v. 
Dean,  3  Whart.  316;  Jenks  v.  Fritz,  7  W.  &  S.  201  ;  or  unless  part  of 
the  consideration  should  be  the  future  performance  of  certain  stipula- 
tions in  the  articles,  in  which  case  the  deed  may  be  considered  not  so 
much  a  merger  of  the  original  contract  as  a  part  performance  of  it : 
Selden  v.  Williams,  9  Watts  12 ;  Brown  v.  Moorhead,  8  S.  &  R.  569.  In 
the  latter  case,  however,  it  is  said  that  to  rebut  the  presumption  that  the 
law  would  otherwise  make  (viz.,  that  of  the  merger),  the  intention  to 
the  contrary  must  be  clear  and  manifest :  Seitzinger  v.  Weaver,  1  Rawle 
385.— R. 


29  smith's  law  of  contracts. 

inferior  degree :  thus,  a  verbal  license  will  not  exempt  a 
man  from  liability  for  breach  of  his  covenant,  (w)  Thus 
in  West  v.  Blakeway,  (o)  a  tenant  had  covenanted  not  to 
remove  a  greenhouse,  and  it  was  held  no  defence  for  him 
against  an  action  for  so  doing,  that  he  had  his  landlord's 
subsequent  permission  so  to  do,  that  permission  not 
being  shown  to  have  been  under  seal.  "  It  is  a  well- 
known  rule  of  law,"  said  the  Lord  Chief  Justice,  "  that 
unumqiiodque  ligamen  dissolvitur  eodem  ligamme  quo  et 
ligatur.  This  is  so  well  established,"  continued  his 
Lordship,  "  that  it  appears  to  me  unnecessary  to  refer 
to  cases.  I  will  mention  only  Rogers  v.  Payne,  (jt?) 
which  was  an  action  of  covenant  for  the  non-payment  of 
money ;  the  defendant  pleaded  a  parol  discharge  in  sat- 
isfaction of  all  demands.  It  was  held  upon  demurrer 
that  the  covenant  could  not  be  discharged  without  deed, 
and  Blake's  case($')  was  cited."^ 

(?i)  See  Cocks  v.  Nash,  9  Bing.  (23  E.  C.  L.  R.)  341  ;  Wood  v.  Lead- 
bitter,  13  M.  &.  W.  838. 

(o)  2  M.  &  Gr.  (40  E.  C.  L.  R.)  729;  Doe  dem.  Muston  v.  Gladwin, 
6  Q.  B.  (51  E.  C.  L.  R.)  953. 

[p)  2  Wils.  376. 

[q)  6  Co.  Rep.  43  b.  See  also  Harris  v.  Goodwyn  2  M.  &.  Gr.  (40 
E.  C.  L.  R.)  405.     See  Nash  v.  Armstrong  30  L.  J.  (C.  P.)  286. 

*  West  V.  Blakeway  must  be  considered  as  laying  down  a  more  rigid 
rule  than  has  been  observed  on  this  side  of  the  Atlantic,  where  there 
have  been  many  decisions  to  the  effect  that  a  parol  dispensation  with 
the  performance  of  a  sealed  conti-act  is  valid  (and  similar  in  its  effects  to 
a  license  to  exercise  dominion  over  land,  which,  while  unrevoked,  is  a 
justification  for  any  acts  done  under  its  authority),  upon  the  ground 
that  although  the  contract  itself  cannot  be  dissolved  unless  by  an  instru- 
ment of  equal  solemnity  as  that  creating  it,  yet  that  the  rights  proceed- 
ing from  it  maybe  varied  or  released  by  parol :  United  States  «j.  Howell, 
3  Wash.  C.  C.  620 ;  Fleming  v.  Gilbert,  3  Johns.  528  ;  Longworth  v. 
Smith,  2  Wend.  587  ;  Dearborn  v.  Cross,  7  Cow.  48  ;  Leavitt  v.  Savage, 
16  Me.  72  ;  Marshall  v.  Craig,  1  Bibb  379  ;  and  such  was  the  view  taken 
in  the  earlier  English  cases :  1  Roll.  Abr.  453,  pi.  5 ;  Id.  455,  pi.  1 ; 
Year  Book,  2  Hen.  6,  37  ;  Ratcliffe  v.  Pembleton,  1  Esp.  35  ;  Blackwell 


ON    CONTRACTS    BY    DEED.  30 

*It  is  another  advantao;e  of  a  contract  by  deed    ^ , 

.  r  301 

over  a  simple  contract,  (r)  that  although,  as  is  well    ^       -^ 

known,  a  chose  in  action  is  not  assignable  by  law,  (5) 

yet,  where  the   contract  is  one   between  landlord  and 

tenant,  and  is  such  as  in  its  nature  to  affect  directly  the 

estates  of  either  of  them,  which  in  law  is  called  running 

with  the  land,(^^)  the  benefit  and  the  burthen  of  that 

contract  when  under  seal  will,  if  the  estate  of  either  is 

assigned,  pass  with  the  reversion  or  the   term  to  the 

new  landlord  or  to  the  new  tenant.     This  is  partly  by 

(;•)  Standen  v.  Christmas,  16  L.  J.  (Q.  B.)  265  ;  10  Q.  B.  (59  E.  C. 
L.  R.)  135  ;  Bryd.tres  v.  Lewis,  3  Q.'B.  (43  E.  C.  L.  R.)  603. 

(s)   Com.  Dig.  Assignment,  C.  1,  Id.  Grant  D. 

[t)  Spencer's  case,  5  Co.  Rep.  16  ;  1  Smith  L.  C.  43,  5th  ed.  ;  Vernon 
V.  Smith,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  1. 

V.  Xash,  1  Str.  535  ;  Jones  v.  Barclay,  Dougl.  684 ;  in  which  case  it  was 
held  that  a  tender  of  performance  and  waiver  of  it  (the  evidence  of 
which  must  always  rest  in  parol)  were  equivalent  to  actual  perform- 
ance. In  Cordwent  v.  Hunt,  8  Taunt.  596,  it  was,  however,  held  that  in 
an  action  of  covenant  for  not  erecting  a  threshing-mill,  it  was  no  defence, 
that  the  omission  to  do  so  was  at  the  special  request  of  the  plaintiS". 
This  case  was  followed  by  West  v.  Blakeway,  supra,  where  the  defendant 
had,  in  a  lease  executed  to  him  by  the  plaintiflF's  testator,  covenanted 
not  to  remove  any  buildings  erected  on  the  premises  during  the  term, 
and  the  breach  alleged  was  that  he  had  permitted  the  removal  of  a 
greenhouse,  to  which  the  defendant  pleaded  that  after  the  execution  of 
the  lease,  the  term  had  been  assigned  to  a  third  person,  to  whom  the 
plaintiff's  testator  promised  that  if  he  would  erect  the  greenhouse,  he 
should  have  liberty  to  remove  it  at  the  expiration  of  the  lease.  Under 
these  circumstances,  as  has  been  well  observed  of  this  case,  there  can  be 
no  question  that,  upon  familiar  principles,  a  parol  license  to  remove  the 
greenhouse  would  have  protected  a  party  in  so  doing,  if  the  greenhouse 
had  at  the  time  of  the  license  been  in  actual  existence,  and  in  the  pos- 
session of  the  lessor  ;  and  the  effect  of  the  decision  was  therefore  to 
deny  the  operation  of  such  a  license,  as  a  protection,  while  the  title  to 
the  greenhouse  rested  on  an  executory  contract,  thereby  holding  that 
the  right  of  a  party  can  be  greater  under  a  contract-while  yet  executory 
than  after  it  had  passed  into  execution  and  conferred  an  actual  title : 
2  American  Lead.  Cas.  758,  License.  Such  a  course  of  decision,  how- 
ever, has  not,  as  we  have  seen,  been  followed  in  this  country. — r. 


30  smith's  laav  of  contracts. 

force  of  the  common  law,  and  partly  by  force  of  the  stat, 
32  Hen.  YIII.,  c.  34,  (w)  an  Act  passed  shortly  after  the 
dissolution  of  the  monasteries,  and  rendered  necessary 
thereby.  For,  as  by  the  common  law,  neither  the 
benefit  nor  the  burthen  of  a  contract  could  in  general  be 
transferred  by  assignment,  it  became  necessary,  when  so 
many  reversions  of  estates  held  by  farmers  and  tenants, 
for  lives  or  years,  were  alienated,  to  give  to  the  pur- 
chasers or  alienees  the  same  rights  against  the  farmers 
or  tenants  as  the  lessors  had ;  and  the  legislature  natur- 
ally and  equitably  went  on  to  give  corresponding  rights 
to  the  farmers  and  tenants. 

*Again,  a  deed  has  this  further  advantage  of  a 
'-  -■  simple  contract,  that,  in  case  of  the  death  of  the 
party  bound  by  it,  it  charges  his  heirs  (if  the  deceased 
bound  his  heirs  by  using  words  for  that  purpose  in  the 
deed)  to  the  extent  of.  any  assets  that  may  have  de- 
scended to  them.(:?;) 

You  will  find  the  nature  of  the  heir's  liability  fully 
explained  in  the  notes  to  Jefferson  v.  Morton.  (^)  If, 
indeed,  the  debtor  had  devised  the  land  away,  instead 
of  allowing  it  to  descend  to  his  heir,  the  creditor  could 
not  at  common  law  have  sued  the  devisee.  However, 
by  stat.  3  Wm.  III.,  c.  14,  usually  called  the  Statute  of 
Fraudulent  Devises,  the  devisee  was  made  liable  as  well 
as  the  heir.  But,  as  this  statute  did  not  provide  for  the 
case  of  there  being  no  heir,  the  land  in  that  event  going 
to  the  lord  by  escheat  if  there  was  no  devisee,  or  to  the 
devisee  if  one  was  designated  by  the  Avill,  a  distinction 
which  it  is  sometimes  important  to  observe,  (^)  it  Avas 
repealed,    and   its    enactments    repeated,    making   the 

[u)  Thursby  v.  Plant,  1  Wms.  Saund.  240. 
{x)  Com.  Dig.  Covenant^  C.  2,  Id.  Assets,  A. 
ly)  2  Wms.  Saund.  6. 
(z)  Hunting  v.  Sheldrake,  9  M.  &  W.  256. 


ON    CONTRACTS    BY    DEED.  31 

devisee  in  sucli  case  liable,  with  several  other  improve- 
ments, by  stat.  1  Wm.  IV.,  c.  47,  usually  called  Sir 
Edward  Sudgen's  Act. [a) 

While  on  this  subject,  it  may  as  well  be  *men-  r:::on-| 
tioned,  that,  although  the  right  of  bringing  an 
action  against  the  heir  or  devisee  is  limited  to  specialty 
creditors,  yet,  by  stat.  3  &  4  Wm.  IV.,  c.  104,  the  simple 
contract  creditors  have  a  remedy  'Against  the  real  estate 
of  the  deceased  in  equity,  where,  however,  their  claims 
are,  by  the  express  enactment  of  the  statute,  postponed 
to  those  of  creditors  by  deed  in  which  the  heirs  of  the 
deceased  are  mentioned.  And  by  this  Act  lands  escheat- 
ing for  want  of  heirs  are  made  assets.  (^) 

In  the  administration  of  the  personal  effects,  also,  the 
specialty  creditors  used  to  have,  as  you  are  probably 
aware,  a  priority  over  those  by  simple  contract,  (c)^ 
This,  however,  is  now  no  longer  the  case,  generally,  for, 
by  32  &  33  Vict.  c.  46,  sec.  1,  the  specialty  and  simple 
contract  creditors  of  persons  dying  on  or  after  the  1st  of 
January  1870,  stand  in  equal  degree;  but^  by  the  pro- 

(a)  See  Hunting  v.  Sheldrake,  9  M.  &  W.  263.  On  the  construction 
of  statute  3  W.  &  M.  c.  14,  you  may  see  Farley  v.  Briant,  3  A.  &  E.  (30 
E.  C.  L.  R.)  839. 

[h)  Evans  v.  Brown,  5  Beav.  114;  Cummins  v.  Cummins,  3  J.  &  L. 
<)4. 

(c)  Pinchorn's  case,  9  Co.  Rep.  88  b. 

^  A  striking  difference  has  exrsted  between  the  course  of  legislation  on 
the  different  sides  of  the  Atlantic,  with  respect  to  the  liability  of  estates 
of  decedents  for  the  payment  of  their  debts,  and  although  the  rules  in 
the  different  States  must  necessarily  be  local  in  their  application,  yet  it 
may,  in  general,  be  isaid  that  in  this  country  lands  are  liable  for  the 
debts  of  a  decedent,  Avhether  due  by  matter  of  record,  specialty,  or  sim- 
ple contract,  and  that  in  the  two  latter  cases,  although  they  create  no 
lien  during  the  debtors  life,  yet  by  his  death  their  quality  is  changed, 
and  they  become  liens  on  the  real  estate,  which  descends  to  the  heir,  or 
passes  to  the  devisee,  subject  to  the  payment  of  the  debts  of  the  ances- 
tor, according:  to  the  local  laws  of  the  State. — R. 


32  smith's  law  of  contracts. 

viso  of  that  section,  the  Act  is  not  to  affect  any  lien, 
charge  or  other  security  which  an}^  creditor  nia}^  hold 
or  be  entitled  to  for  the  payment  of  his  debt. 

The  occasions  on  which  for  the  most  part  a  deed  is 
necessary  must  now  be  mentioned.  It  will  be  recol- 
lected that  all  property  is  in  its  nature  tangible  or  in- 
tangible, or,  as  it  is  called  in  law,  corporeal  or  incor- 
poreal. Real  property  of  the  corporeal  kind  being 
capable  of  actual  delivery  may,  by  the  common  law,  be 
aliened  or  transferred  by  delivery  alone  without  deed, 
and  is  therefore  said  to  lie  in  livery ;  while  that  of  the 
incorporeal  kind,  being  incapable  of  delivery,  requires 
some  other  mode  to  be  used  for  authenticating  its  alien- 

r^oo->  ation  or  transfer,  which  mode  is  a  deed  J  d)  and 
I   ooj  .  .        .  .    . 

therefore  such  '''property  is  said  to  lie  in  grant,  {e) 

Although  the  older  authorities  speak  of  incorporeal  in- 
heritances, there  is  no  doubt  that  the  principle  does  not 
depend  on  the  quantity  of  interest  granted  or  transferred 
but  on  the  nature  of  the  subject-matter  :  a  right  of  com- 
mon, for  instance,  which  is  a  profit  a  prendre,  or  a  right 
of  way,  which  is  an  easement,  or  right. in  nature  of  an 
easement,  can  no  more  be  granted  or  conveyed  for  life 
or  years  without  a  deed  than  in  fee  simple. (/)  Thus, 
in  Wood  V.  Leadbitter,  just  cited,  a  ticket  of  admission 
to  the  Grand  Stand  at  Doncaster  to  see  the  races,  issued 
by  the  steward,  and  for  which  the  holder  had  paid  a 
guinea,  was  held,  not  being  under  seal,  to  convey  to 

[d)  Co.  Litt.  8  a  ;  Hewlins  w.  Shippam,  3  B.  &  C.  221  (10  E.  G.  L.  R.) 
Bac.  Abr.,  Grant,  E. 

(e)  Id.  2B1.  Com.  310  ad  317;  Shep.  Touch.  228-230;  Sugd.  A' end. 
125  ;  Rann  v.  Hughes,  7  T.  R.  350,  n. 

(/)  Wood  V.  Leadbitter,  13  M.  &  W.  838  ;  Perry  v.  Fitzhowe,  8  Q.  B. 
(55  E.  C.  L.  R.)  757  ;  Mayfield  v.  Robinson  7  Q.  B.  ■  (53  E.  C.  L.  R.) 
486  ;  Worsley  v.  South  Devon  Railway,  20  J.  L.  (Q.  B.J  254  ;  16  Q.  B. 
(71  E.  C.  L.  R.)  539  ;  Taplin  v.  Florence,  20  L.  J.  (C.  P.)  137  ;  10  C.  B. 
(70  E.  C.  L.  R.)  744;  HeAvit  v.  Isham,  21  J.  L.  (Ex.)  35  :  7  Ex.  77. 


ON    CONTRACTS    BY    DEED.  33 

him  no  right  to  be  there,  and  no  remedy  for  having  been 
put  out.  For  the  transfer,  therefore,  of  incorporeal  pro- 
perty, a  deed  is  necessary. 

As  a  general  rule,  chattels  real  and  personal  of  tan- 
gible or  corporeal  natures  may,  at  common  law,  be 
granted  without  deed.(^)  And,  although  an  estate  of 
inheritance  or  freehold  cannot  be  granted  *upon  r;^._. ^-i 
condition  without  deed,(h)  yet  a  chattel,  real  or 
personal,  may  be  so  granted  by  mere  parol.  (2) 

There  is  also  a  great  difference  between  the  effect  of' j 
a  gift  of  chattels  by  mere  word  of  mouth,  and  a  gift  of  il 
chattels  by  deed.     In  the  former  case,  after  the  gift  and  f, 
before  something  has  been  done  or  said  by  the  donee  to  t 
show  his  acceptance  of  the  thing  given,  the  gift  is  revo-  ; 
cable.  (^)     But  if  the  gift  be  by  deed,  it  vests  in  the 
donee  upon  the  execution  of  the  deed,  and  is  irrevocable 
by  the  donor  until  it  is  actually  disclaimed  by  the  donee. 
After  such  execution,  and  before  such  disclaimer,  the 
estate  is  in  the  donee  without  any  actual  delivery  of  the 
chattel  given.  (^) 

It  is,  however,  necessary  to  bear  in  mind  that  the 
common  law  has  been  much  altered  in  these  respects  by 
stat.  8  &  9  A'^ict.  c.  106,  s.  3,  by  which  feofinients,  par- 
titions, exchanges,  leases  required  by  law  to  be  in  writing, 
assignments  of  chattel  interests,  and  surrenders  in 
writing  of  all  interests  in  tenements  and  hereditaments 
not  being  such  as  might  have  been  created  without 
w^riting,  made  after  the  1st  of  October  1845,  with  some 

{g)  Shep.  Touch.  23i  ;  Bac.  Abr.,  Grant,  E, 

(A)  Litt.  365. 

(t)  Id.;  Reeves  v.  Cooper,  5  Bing.  X.  C.  (35  E.  C.  L.  R.)  136  :  Flory 
V.  Denny,  21  L.  J.  (Ex.)  223  ;  7  Ex.  581. 

(/.•)  2  Rolle's  Abr.  62;  14  Vin.  Abr.  123. 

[l)  Perkins'  Grant  57.  Com.  Dig.  Bie7is.  52  ;  2  M,  &  G.  691,  note  a; 
Barton  v.  Gainer,  27  L.  J.  (Ex.)  390 ;  3  H.  &  N.  387. 


OO  SMITH  S    LAW    OF    CONTRACTS. 

p:.;:o;--|  ^excGptioiis  uiiimportant  for  our  present  pur- 
pose, are  void  at  law,  unless  made  by  deed. 

A  deed  is  also  necessary  for  authorizing  an  agent  to 
execute  a  deed  for  another. (m)^  It  is  also,  as  will  here- 
after appear,,  necessary  to  a  grant  by  a  corporation. 

Patents  for  inventions,  which  have  now  become  a 
very  important  class  of  property,  are  by  the  stat.  15  & 
16  Vict.  c.  83,  assignable  only  by  deed  or  will,(w)  and 
such  assignment  must  be  perfected  by  entry  on  the 
register  of  proprietors,  (o)  But  it  is  remarkable,  and 
worthy  of  attention,  that  a  copyright  in  any  book  within 
the  Copyright  Act,  5  &  6  Vict.  c.  45,  may,  under  sect. 
13  of  that  Act,  be  assigned  by  entry  made  in  the  Book 
of  Registry  kept  at  Stationers'  Hall  of  the  assignment, 
and  such  assignment  so  entered  is  of  the  same  force  and 
effect  as  if  it  had  been  made  by  deed,  A  deed  is  ren- 
dered necessary  by  the  Merchant  Shipping  Act,  1854, 
to  make  a  valid  transfer  of  a  registered  ship,  or  any 
share  therein,  to  a  person  qualified  to  be  owner  of  a 
British  sliip.(j») 

Lastly,  with  regard  to  the  remedy  upon  a  contract  by 
deed  :  wherever  a  promise  is  made  by  deed,  the  per- 
rH:of>-i  formance  may  be  enforced  by  an  action  *of  cove- 
nant ;  and,  if  a  liquidated  debt  be  secured  by  it, 

(in)  Steiglitz  v.  Egginton,  1  Holt  N.  P.  C.  141  ;  Harrison  v.  Jackson, 
7  T.  R.  207. 

[h)   15  tt  16  Vict.  c.  83,  Form  of  Letters  Patent. 
(o)  See  Norman  on  Letters  Patent,  c.  16,  s.  8. 
[p]  17  &  18  Vict.  c.  104,  s.  55,  sched.  E. 

'  An  authority  under  seal  is  necessary  to  authorize  an  agent  to  execute 
a  sealed  instrument:  Rowe  v.  Ware,  30  Ga.  278 ;  Harshaw  v.  M'Kesson, 
<)5  N.  C.  688.  Where  an  agent,  having  only  parol  authority  to  bind  his 
jirincipal,  executes  a  contract  under  seal,  if  not  essential  to  the  validity 
of  it,  it  should  be  regarded  as  mere  surplusage  and  the  contract  held 
good  as  a  simple  contract:  Longr.  Hastwell,  34  N.  J.  (Law)  116. 


OF    CONTRACTS    BY    DEED.  36 

by  an  action  of  debt.(^)  These  remedies  must  be  pur- 
sued within  twenty  years,  except  in  cases  of  disability 
by  reason  of  infancy,  coverture,  lunacy,  or  absence  be- 
yond seas,  such  being  the  period  fixed  by  3  &  4  Wm. 
IV.,  c.  42,  s.  3,^  which,  being  later  in  date,  though 
passed  in  the  same  session  with  3  &  4  Wm.  IV.,  c.  27, 
is  held  to  have  superseded  some  inconsistent  provisions 
contained  in  tliat  statute,  (r) 

Having  thus  touched  on  the  general  division  of  Con-- 
tracts  into  those  of  Record,  by  Deed,  and  by  Simple 
Contract,  and  explained  the  nature  of  a  deed,  and  the 
formalities  attending  its  execution — having  pointed  out 
the  distinction  between  the  absolute  delivery  of  a  deed 
and  the  conditional  one  of  an  escrow,  the  distinction  be- 
tween a  deed  poll  and  indenture,  the  peculiar  privileges 
of  a  contract  by  deed,  whether  in  respect  of  the  con- 
sideration, the  estoppel  it  creates,  the  means  by  which 
its  obligation  is  determined,  or  the  rights  which  it  con- 
fers upon  a  creditor  against  his  debtor's  assets, — having 
pointed  out  the  occasions  on  which,  for  the  most  part,  a 
deed  is  necessary,  the  remedy  by  which  its  non-perform- 
ance is  complained  *of  in  a  Court  of  law,  and  ri^rt^j-, 
the  time  of  limitation  within  which  that  remedy 
is  to  be  pursued,  it  remains  to  point  out,  in  a  similar 
manner,  the  peculiarities  attending  Simple  Contracts. 
This  will  be  done  in  the  next  Lecture. 

{q)  See  as  to  forms  of  action  on  and  after  November  2d,  1874,  36  &  37 
Vict.  c.  66  (Supreme  Court  of  Judicature  Act,  1873),  sched.  R.  1. 

[r)  See  Strachan  v.  Thomas,  12  A.  &  E.  (40  E.  C.  L.  R.)  536  ;  Paget 
V.  Foley,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  679. 

^  By  these  statutes  a  positive  bar  is  interposed  to  a  recovery  upon 
specialities  after  twenty  years.  Before  their  passage,  there  was  only  the 
common  law  presumption  of  payment  or  performance,  which  was  liable 
to  be  rebutted  by  testimony,  and  in  this  country  it  is  believed  that  stat- 
utes similar  to  that  of  3  &  4  Will.  4,  have  not  been  generally  enacted. — r. 
4 


38  smith's  law  of  contracts. 


[*38]  ■  ^LECTURE  II. 

THE     NATURE     OF     SIMPLE     CONTRACTS  ; OF     WRITTEN     CON- 
TRACTS; THE    STATUTE    OF    FRAUDS. 

In  the  last  lecture,  I  compressed  the  observations  I 
had  to  make  on  the  general  nature  of  Contracts  under 
Seal.  I  now  arrive  at  the  class  denominated  Shn^ole 
ConiracU^  Avhich  comprises  all  of  a  degree  inferior  to 
deeds,  whether  they  be  verbal  or  written.  For  though, 
as  I  shall  presently  explain  to  you,  there  is,  in  practice, 
a  very  wide  distinction  between  tvritten  and  verbal  con- 
tracts ;  yet  in  theory  the  law  of  England  acknowledges 
no  difference  between  them  at  all,  but  denominates  them 
all  by  the  same  term,  Sim,ple  Contracts,  {a)  And  indeed 
they  are  so  far  alike  that  they  all,  whether  verbal  or 
written,  are  subject  to-  those  marks  of  inferiority  to 
contracts  by  deed  which  you  heard  described  in  the  last 
lecture. 

Thus,  they  do  not  create  an  estoppel.  They  are 
capable  of  being  put  an  end  to  without  the  solemnity 
of  a  deed.  They  form  no  ground  of  action  against  the 
heir  or  devisee,  even  though  he  be  expressly  named  in 
r^oqn  them;  and  they  require  a  consideration  *to  sup- 
port and  give  them  validity,  though,  as  I '  shall 
have  occasion  to  explain  in  a  future  lecture,  there  is  one 
case,  even  among  simple  contracts,  in  which  the  con- 
sideration need  not  be  shown,  but  is  presumed  to  exist, 
unless  its  existence  can  be  disproved.  In  these  respects, 
all  simple  contracts  are  like  one  another.  But  there  are 
two  great  practical  differences  between  verbal  and  written 

[a]  See  Beckham  v.  Drake,  9  M.  &  W.  79. 


OF    AVRITTEN    CONTRACTS.  39 

contracts,  which  it  is  necessary  to  explain  at  some  length 
to  you. 

The  first  concerns  the  mode  in  ivhicli  tliey  are  to  he 
proved.  And  it  results  from  an  inflexible  rule  of  the 
law  of  evidence,  that,  when  a  contract  is  reduced  into 
writing,  it  shall  be  proved  by  the  writing,  and  by  that 
only.  For  the  written  instrument,  being  constituted 
by  the  parties  the  expositor  of  their  intentions,  must, 
in  order  to  effectuate  that  object,  be  the  only  instru- 
ment of  evidence  to  prove  their  intentions.  If,  instead 
of  being  constituted  by  the  parties  the  expositor  of 
their  intentions,  a  written  instrument  is  constituted  such 
by  a  positive  rule  of  law,  the  same  result  must  follow. 
Thus,  when,  by  the  Statute  of  Frauds,  operation  is 
given  to  a  written  instrument  exclusively,  the  object  of 
the  statute  would  be  defeated  if  parol  evidence  were 
admitted  in  lieu  of  the  required  writing,  or  in  any  way 
to  alter  it.  To  admit  oral  evidence  as  a  substitute  for 
instruments  to  which,  by  reason  of  their  superior  authen- 
ticity and  permanent  qualities,  an  exclusive  authority 
is  given  *by  the  parties,  would  be  to  substitute  r^A(\-\ 
the  inferior  for  the  superior  degree  of  evidence, 
conjecture  for  fact,  and  presumption  for  the  highest  de- 
gree of  legal  authority.  It  would  substitute  loose  recol- 
lection and  uncertainty  of  memory  for  the  most  sure 
and  faithful  memorials  which  human  ingenuity  can 
devise  or  the  law  adopt,  (^)  and  would  introduce  a  dan- 
gerous laxity  and  uncertainty  as  to  all  titles  to  pro- 
perty, which,  instead  of  depending  on  certain  fixed  and 
unalterable  memorials,  would  then  be  made  to  depend 
upon  the  frail  memories  of  witnesses,  and  be  perpetually 
liable  to  be  impeached  by  fraudulent  and  corrupt  prac- 
tices.    And  where  the  law,  for  reasons  of  policy,  re- 

[b)  Countess  Rutland's  case,  5  Rep.  26  ;  Stark.  Evid.  4th  ed.  651. 


40  smith's  law  of  contracts. 

quires  written  evidence,  to  admit  oral  testimony  in  its 
place  would  be  to  subvert  the  rule  itself,  (c) 

In  applying  this  rule,  therefore,  no  contemporaneous 
verbal  expressions  must  be  allowed  to  be  engrafted 
upon  the  writing,  so  as  to  alter  it  by  adding  to,  or  taking 
away  from  its  import.  You  will  find  this  principle  laid 
down  and  enlarged  upon  in  all  the  treatises  on  Evi- 
dence; see,  for  instance,  Starkie  on  Evid.  (4th  ed.  64  S), 
where  you  will  find  the  application  of  this  rule  very 
fully  discussed.  Indeed,  there  is  hardly  any  branch  of 
the  law  which  has  given  rise  to  so  much  subtle  and 
anxious  discussion  and  inquiry  as  this  single  rule  of  the 
p.^.-j-j  law  *of  Evidence.  The  late  Vice-Chancellor,  Sir 
James  Wigram,  has,  in  one  of  the  ablest  trea- 
tises existing  in  our  law  libraries,  discussed  its  applica- 
tion to  the  single  head  of  Devises. 

You  must,  therefore,  take  care  not  to  be  misled  as  to 
the  meaning  of  the  rule;  for,  as  may  be  expected,  it 
involves  nice  distinctions.  It  would  be  impossible  to 
do  complete  justice  to  these  within  the  limits  of  this 
work;  still,  however,  I  think  that  I  can-  point  out  their 
nature,  so  far  as  to  give  a  notion  of  the  sort  of  ques- 
tions which  are  likely  to  arise,  sufficient  to  prevent  sur- 
prise by  such  questions,  should  they  occur  in  practice. 

Now,  the  rule  itself,  as  I  have  said,  is,  that  no  puroi, 
that  is,  verbal,  evidence  of  what  took  place  at  the  time 
of  making  a  written  contract^  is  admissible  for  the  pur- 

(c)  Id.  649.     Marshall  v.  Lynn,  4  M.  &  W.  109. 

^  These  rules  of  course  apply  exclusively  to  written  and  not  parol 
contracts.  An  illustration  of  this  occurred  in  the  case  of  an  auctioneer, 
who,  at  the  time  of  a  sale,  verbally  declared  a  variation  from  the  printed 
catalogue  ;  namely,  that  goods  stated  therein  to  be  silver  were  only 
plated,  and  so  sold  them  ;  the  actual  contract  being  a  parol  one,  evidence 
of  the  parol  statement  was  held  admissible  to  explain  it:  Eden  v.  Blake, 
1?)  M.  &  W.  614;  but  if  the  auctioneer  had  signed  an  agreement  which 


OF   WRITTEN    CONTRACTS.  41 

pose  of  contradicting  ov  alterinc/  it;  for  instance,  if  A. 
contract  in  writing  with  B.,  to  deliver  him  100  quarters 
of  wheat  within  three  months,  at  so  much  per  quarter, 
no  evidence  would  be  admissible  to  show  that  it  was 
agreed,  at  the  time,  that  the  wheat  should  be  delivered 
only  in  case  of  the  arrival  of  a  ship  which  the  vendor 
expected  from  Odessa  with  wheat  on  board;  for  that 
would  be,  by  parol  evidence,  to  turn  an  absolute  written 
contract  into  a  conditional  one.(<:/)  So,  if  a  promissory 
note  or  bill  of  exchange  (which,  not  being  under  seal, 
is,  you  must  be  aware,  a  simple  ^contract,)  were  rtv.A(r\ 
made  payable  on  one  day,  verbal  evidence  could 
not  be  admitted  to  show  that  it  was  meant  to  be  paya- 
ble upon  another,  (e)  So  also  where  a  written  contract 
for  the  sale  of  goods  did  not  specify  any  time  for  deliv- 
ering them,  the  vendor  was"  not  allowed  to  give  evidence 
that  at  the  time  of  forming  the  contract  it  was  made  a 
condition  of  the  sale,  that  the  purchaser  should  imme- 
diately take  them  away.(/)  In  like  manner,  where 
the  written  contract  mentioned  no  time  for  payment, 
and  where,  consequently,  the  law  implies  the  term  of 
immediate  payment,  the  Court  held  this  to  be  the  mean- 
ing of  the  written  contract,  and  would  not  allow  it  to 
be  proved  that  by  the  usual  course  of  dealing  between 

[d]  See  Wallis  v.  Littell,  31  L.  J.  (C.  P.)  100. 

(e)  Free  v.  Hawkins,  8  Taunt.  (4  E.  C.  L.  R.)  92 ;  Hoare  v.  Graham, 
3  Camp.  57  ;  Hogg  v.  Snaith,  1  Taunt.  347 ;  Moseley  v.  Hanford,  10  B. 
&  C.  (21  E.  C.  L.  R.)  729:  Foster  v.  Jolly,  1  C,  M.  &  R.  703;  Adams 
V.  Wordley,  1  M.  &  W.  374 ;  Brown  v.  Langley,  4  M.  &  G.  (43  E.  C.  L. 
R.)  466 ;  Besant  v.  Cross,  20  L.  J.  (C.  P.)  173  ;  10  C.  B.  (70  E.  C.  L.  R.) 
895 ;  Abrey  v.  Crux,  L.  R.  5  C.  P.  37  ;  39  L.  J.  (C.  P.)  9. 

(/)  Greaves  v.  Ashlin,  3  Camp.  426. 

referred  to  or  formed  part  of  the  unaltered  catalogue,  then  his  parol  de- 
clai'ation  of  the  alteration  could  not  be  given  in  evidence,  as  it  would 
vary  a  written  contract :  Shelton  v.  Livius,  2  Cr.  &  J.  411. 


42  smith's  law  of  contracts. 

the  parties,  six  months'  credit  was  to  be  given.  (^)  A 
defendant  bargained  by  parol  with  the  plaintiff,  who 
was  a  baker,  to  supply  him  with  flour  of  the  same 
quality  as  that  which  he  supplied  to  another  customer, 
one  M.;  and  the  defendant  sent  the  plaintiff  as  a  note 
of  the  contract  the  following  memorandum,  signed  by 
pi:  A '.-I  himself:  "Sold  to  Mr.  H.  (the  plaintiff)  25  sacks 
*  whites  X  S,  at  685.  per  sack  net,"  omitting  to 
state  that  the  quality  should  be  the  same  as  that  sup- 
plied to  M.;  and  afterwards  delivered  flour  correspond- 
ing to  the  note.  The  flour  being  inferior  to  that  sup- 
plied to  M.,  the  plaintiff  sued  him  for  his  breach  of  con- 
tract. But  the  Court  of  Common  Pleas  considered  that 
parol  evidence  was  not  admissible  to  show  that  the 
plaintiff  had  bargained  for  other  flour  than  that  men- 
tioned in  the  written  note.  "The  contract,"  said  Maule, 
J.,  "whatever  it  was, .  was  reduced  into  writing,  and 
when  that  is  so  we  must  look  at  the  writing  and  at  noth- 
ing else,  even  though  terms  previously  agreed  upon  by 
the  contracting  parties  be  omitted  from  it."  (A)  And  as 
verbal  evidence  of  what  took  place  at  the  time  of  mak- 
ing a  written  contract  cannot  be  given  to  show  that  the 
meaning  of  it  is  different  from  what  its  words  import, 
so  neither  can  evidence  that  the  parties  have  acted  upon 
the  supposition  of  its  being  different  have  that  effect. (2)^ 

(r/)  Ford  v.  Yates,  2  M.  &  G.  (40  E.  C.  L.  R.)  549.  See  Parke,. B.,  2 
Ex.  99. 

{h)  Harnor  v.  Groves,  24  L.  J.  (C.  P.)  53;  ]5  C.  B.  (80  E.  C.  L.  R.) 
667  ;  Hotson  v.  Browne,  30  L.  J.  (C.  P.). 106. 

[i)  Giraud  v.  Richmond,  15  L.  J.  (C.  P.)  180  ;  2  C.  B.  (52  E.  C.  L.  R.) 
835,  s.  c. 

'  A  vast  number  of  authorities  upon  this  much  discussed  rule  of  evi- 
dence will  be  found  in  the  digests  and  elementary  treatises,  among  which 
may  be  particularly  noticed  the  notes  of  Messrs.  Cowen  and  Hill,  to  the 
American  edition  of  Phillips  on  Evidence,  and  the  fifteenth  chapter  of 
Professor  Greenleaf's  treatise  on  that  subject.     A  few  only  of  the  in- 


OF    WRITTEN    CONTRACTS.  43 

But  though  you  cannot  be  allowed  to  show  that  the 
meaning  of  a  written  contract  was  varied  at  the  time  of 

stances  of  the  application  or  non-application  of  the  rule  can  be  noticed 
here.  It  has  been  enforced  in  the  exclusion  of  evidence  to  show  that  a 
signature  in  one's  own  name  was  intended  to  be  merely  as  agent:  Stack- 
pole  V.  Arnold,  1 1  Mass.  27 ;  Hancock  v.  Fairfield,  30  Me.  299 ;  that  a 
written  agreement  to  deliver  wheat  to  A.  was  modified  by  a  parol  direc- 
tion to  deliver  it  to  B.  :  Wolf  v.  Myers,  3  Sand.  7  ;  Babcock  v.  May,  4 
Hamm.  334  ;  that  a  written  agreement  lor  the  purchase  of  land,  whereby 
the  purchaser  was  not  to  cut  timber,  was  varied  by  a  parol  license  to  cut 
it:  Pierepont  v.  Barnard,  5  Barb.  S.  C.  364-,  that  a  check  purporting  to 
be  for  so  much  money  was  designed  to  be  payable  in  the  notes  of  a  cer- 
tain bank :  Pack  v.  Thomas,  13  Sm.  &  Marsh.  11  :  or  on  a  contingency  : 
Mosely  v.  Hanford,  10  Barn.  &  Cress.  729  ;  Cunningham  v.  Wardell,  3 
Fair  460 ;  Erwin  i\  Sanders,  1  Cow.  249 ;  that  a  particular  ship  was  ver- 
bally excepted  from  a  policy  of  insurance  on  the  fleet  to  which  she  be- 
longed:  Weston  V.  Emes,  1  Taunt.  115;  that  goods  to  be  stowed  under 
deck  were  verbally  allowed  to  be  stowed  on  deck:  Creery  v.  Holly,  14 
Wend.  26  (it  would  have  been  different  had  the  evidence  been  to  prove 
a  custom  of  storage  in  that  manner:  Baxter  v.  Leland,  1  Blatch.  526  ; 
see  infra,  note  to  page  30).  The  rule,  however,  does  not  exclude  the 
testimony  of  experts  to  aid  in  the  reading  of  the  instrument,  or  to  explain 
a  local  or  technical  meaning:  Wigram  on  Wills  48  ;  Sheldon  v.  Benham, 
4  Hill  129  ;  Smith  v.  Wilson,  3  B.  &  A.  (23  E.  C.  L.  R.)  728  ;  Clayton  v. 
Gregson,  5  Ad.  &  El.  (31  E.  C.  L.  R.)  302  ;  The  King  v.  Washiter,6  Ibid. 
(33  E.  C.  L.  R.)  153  ;  Piesch  v.  Dixon,  I  Mason  11 ;  unless,  indeed,  the 
words  have  a  known  legal  meaning :  Firth  v.  Barker,  2  Johns.  335.  Nor 
does  it  exclude  the  admission  of  the  contemporaneous  writings  relating 
to  the  subject-matter  :  Bowenbank  v.  Monteiro,  4  Taunt.  846  ;  Hunt  v. 
Livermore,  5  Pick.  395  ;  Bell  v.  Bruen,  1  How.  169  ;  Thomas  v.  Austin, 
4  Barb.  S.  C.  265  ;  nor  evidence  to  show  the  circumstances  surrounding 
the  parties  at  the  time :  Ilaigh  v.  Brooks,  10  Ad.  &  Ell.  309  ;  Goldsheds 
V.  Swan,  1  Exch.  154  ;  Bainbridge  v.  Wade,  1  Eng.  Law  &  Eq.  R.  236  ; 
Smith  i\  Bell,  6  Pet.  75;  Wooster  v.  Butler,  13  Conn.  309;  Knight  r. 
New  Eng.  Worsted  Co.,  2  Cush.  271-283 ;  Lowrie  v.  Adams,  22  Verm. 
160;  for  all  this,  it  is  said,  tends  to  explain,  and  not  to  contradict  the 
writing.  And  it  is  obvious  that  evidence  is  admissible  to  show  that  the 
writing  neve'r  was  of  any  validity,  as  by  reason  of  fraud,  illegality, 
duress,  incapacity  of  parties,  &c.,  for  those  grounds,  as  has  been  shown 
in  the  preceding  chapter,  vitiate  the  contract  ah  inifio,  and  tO  exclude 
evidence  of  this,  would  be  to  promote  and  not  to  repress  injustice. 

But  upon  the  gi*ound  that  parol  evidenci'  is  admissible  to  explain  in 
cases  oi'J'raud,  the  courts  of  Pennsylvania  have  gone  very  far,  and  have 


43  smith's  law  of  contracts. 

making  it,  by  words  merely  spoken,  there  are  some 
cases  in  which  you  may  show  that  it  was  subsequentlt/ 

in  effect  taken  the  position  that  when  the  written  contract  has  been  en- 
tered into  with  the  understanding  that  it  is  to  be  used  in  a  particular 
way,  or  with  a  particular  qualification,  it  is  a  fraud  to  violate  this  under- 
standing. And  hence  many  cases  have  sanctioned  the  admission  of  evi- 
dence to  show  what  was  the  understanding  at  the  time  the  contract  was 
made.  "If  the  rule  is,"  it  was  said,  in  Bollinger  w.  Eckert,  16  S.  &  R. 
424,  "  that  parol  evidence  is  admissible  to  correct  mistake  or  fraud,  and 
if  the  real  contract  of  the  parties  is  not  expressed  in  the  writing,  this 
must  arise  from  mistake  or  fraud.  We  seem  now  to  have  settled  down 
in  this  :  whatever  material  to  the  contract  was  expressed  and  agreed  to 
when  the  bai'gain  was  concluded  and  the  article  drawing,  may,  if  not 
expressed  in  the  article,  be  proved  by  parol."  "Ever  since  the  case  of 
Hurst  V.  Kirkbride,  cited  in  1  Binn.  616,"  it  was  said  in  Oliver  v.  Oliver, 
4  Rawle  141,  "  it  has  been  the  practice  to  receive  parol  evidence  of  what 
passed  at  the  time  of  the  execution  of  deeds,  or  at  and  before  the  execu- 
tion. When  the  fairness  of  the  transaction  is  impeached,  it  is  immaterial 
whether  the  party  intended  a  fraud  at  the  time  of  the  contract,  or 
whether  the  fraud  consists  in  the  fraudulent  use  of  the  instrument : 
Hulse  V.  Wright,  16  S.  &  R.  345  ;  Lyn  v.  Huntingdon  Bank,  14  Ibid.  283  ; 
Thompson  v.  White,  1  Dall.  424,  are  of  this  description  ;"  and  many  other 
cases  have,  while  regretting  the  extent  of  the  innovation,  followed  it : 
Partridge  v.  Clark,  4  Penn.  St.  166 ;  Renshaw  v.  Gans,  7  Ibid.  119  ;  Remick 
V.  Swinehart,  11  Ibid.  238.  But  in  the  most  recent  case  on  the  subject, 
Remick's Executors?;.  Remick,  15  Ibid.  66,  the  Court  evinced  the  strongest 
disposition  to  sanction  the  admission  only  of  contemporaneous  evidence, 
and  to  apply  the  strict  rule  in  the  exclusion  of  parol  statements  occur- 
ring j^reijiojis^?/  to  the  transaction.  "In  the  somewhat  unsteady  course 
of  decision  upon  this  vexed  point  of  evidence,"  said  Bell,  J.,  who  de- 
livered the  opinion  of  the  Court,  "  if  any  principle  has  been  adhered  to 
with  tenacity,  it  is,  that  oral  proof  to  vary  or  alfect  a  written  instrument 
must  be  confined  to  what  occurred  at  the  execution  of  it :  Bollinger  v. 
Eckert,  16  S.  &  R.  424 ;  Stine  v.  Sherk,  1  W.  &  S.  195.  Even  thus  re- 
stricted, it  is  acknowledged  to  be  full  of  danger.  Were  the  door  opened 
still  wider  for  the  admission  of  all  the  loose  dicta  of  the  parties,  running, 
it  might  be,  as  in  this  instance,  through  a  long  course  of  years,  the  flood 
of  evil  would  become  so  great  as  to  sweep  before  it  every  barrier  of  con- 
fidence and  safety,  which  human  forethought,  springing  from  experience, 
is  so  sedulous  to  raise  against  the  treachery  of  memory  and  the  falsehood 
of  men.  To  avoid,  therefore,  what  would  really  be  a  social  calamity,  it 
is  I'ecognized  as  a  settled  maxim,  that  oral  evidence  of  an  agreement  or 
understanding  between  parties  to  a  deed  or  other  written  instrument, 


OF    WRITTEN    CONTRACTS.  43 

SO  varied.  These  are  cases  in  which  the  contract, 
although  written,  is  of  a  description  *which  is  r:::j_t-i 
not  required  by  law  to  be  reduced  into  writing 


entertained  before  its  execution,  shall  not  be  heard  to  vary  or  materially 
affect  it :  Cozens  v.  Stevenson,  5  S.  &  R.  421  ;  Gilpin  v.  Consequa,  1  Pet. 
C.  C.  85  ;  s.  c.  3  Wash.  C.  C.  154 ;  M'Kenna  v.  Henderson,  1  P.  R.  417. 
Accordingly,  the  settled  rule  is,  that  when  a  contract  has  been  reduced 
to  writing,  it  is  understood  as  expressing  the  final  conclusions  of  the  con- 
•  tracting  parties,  and  fully  accepted  as  merging  all  prior  negotiations  and 
understandings,  whether  agreeing  or  inconsistent  with  it:  Lighty  v. 
Shorb,  3  P.  R.  450 ;  Monongahela  Nav.  Co.  v.  Fenlon,  4  W.  &  S.  207, 
209.  If  any  dicta  or  even  decision  in  hostility  to  this  axiom  are  to  be 
found,  they  must  be  ascribed  to  the  strong  desire  we  are  all  apt  to  be 
swayed  by,  to. defeat  some  strongly  suspected  fraud  in  the  particular 
case.  But  these  occasional  aberrations  but  lead  to  the  more  emphatic 
reannunciation  of  a  principle  found  to  be  essential  to  the  maintenance 
of  that  certainty  in  human  dealings,  without  which  commerce  must 
degenerate  into  chicanery,  and  trade  become  but  another  name  for 
trick." 

The  line  of  decision  taken  in  Pennsylvania  admitting  such  evidence  on 
the  ground  of  fraud  has  not,  it  is  believed,  been  generally  observed  else- 
where, and  in  a  note  to  Woolam  v.~  Hearu,  2  White's  Equity  Cases  561, 
Am.  ed.,  the  student  will  find  the  authorities  collected  and  commented 
on. — R. 

When  a  contract  to  do  certain  work  is  put  in  writing,  and  no  time  fixed 
for  the  completion  of  the  work,  or  the  payment  of  the  same,  the  inference 
of  law  is,  that  the  work  is  to  be  paid  for  when  the  labor  is  done  ;  and  an 
action  for  labor  and  service  cannot  be  sustained  therefor,  until  the  work 
is  completed  or  the  contract  in  some  legal  way  terminated.  Parol  evi- 
dence, showing  a  verbal  agreement  as  to  the  time  of  payment,  made 
when  the  contract  was  signed,  cannot  be  admitted  :  Thompson  v.  Phelan, 
2  Fost.  339.  See  to  the  same  effect,  Whitney  v.  Lowell,  33  Me.  318  ; 
Conant  v.  Dewey,  1  Fost.  353 ;  Railsbuck  v.  Turnpike  Co.,  2  Cart.  656  ; 
Norton  v.  Coons,  2  Seld.  33.  A  mere  receipt  for  money,  or  other  things, 
it  has  always  been  held,  may  be  explained  or  contradicted  by  parol  : 
O'Brien  v.  Gilchrist,  34  Me.  554  ;  Edgerly  v.  Emerson,  3  Fost.  555  ;  Wads- 
worth  V.  Allcott,  2  Seld.  64:  Deluach  v.  Turner,  6  Rich.  117  ;  AVeather- 
ford  V.  Farrar,  18  Mo,  474  ;  Richardson  v.  Beede,  43  Me.  161  ;  Street  v. 
Hall,  3  Williams  165;  Henry  v.  Henry,  11  Ind.  236  ;  Ilawley  v.  Badez, 
15  Cal.  44 ;  White  v.  Merrell,  32  111.  511.  Parol  evidence  is  admissible 
to  vary  the  consideration  expressed  in  a  deed  or  to  show  that  it  has  not 
been  paid:  Swafford  i'.  Whipple,  3  Iowa  261  ;  Hall  v.  Perry,  Ibid.  579  ; 
Holbrook  v.  Ilolbrook,  30  Verm.  432;  Gordon  v.  Gordon,  1  Mete.  (Ky.) 


44  smith's  laav  of  contracts. 

at  all.  Thus,  if  in  consideration  of  £50,  I  promise  to 
go  to  York  on  the  1st  clay  of  January,  and  that  contract 

285  ;  Andrews  v.  Andrews,  12  Ind.  348  ;  Jones  v.  Jones,  Ibid.  389  ;  Swope 
V.  Faruey,  17  Ibid.  385  ;  Speer  v.  Speer,  1  M'Cart.  240  ;  Buckley's  Ap- 
peal, 48  Penn.  St.  491  ;  Gisbon  v.  Fifer,  21  Tex.  260. 

The  following  cases  may  be  referred  to  as  illustrative  of  the  general 
rule  and  its  many  exceptions. 

Prior  correspondence  or  contemporaneous  verbal  agreements  are  not 
admissible  to  contradict,  vary  or  materially  affect  the  terms  of  a  written 
contract :  Richardson  v.  Comstock,  21  Ark.  69  ;  Oskaloosa  College  v. 
Stafford,  14  Iowa  152;  Hoxie  v.  Hodges,  1  Oreg.  251  ;  Foy  v.  Blackston, 
31  111.  538  ;  Pilmer  v.  Branch  of  State  Bank,  16  Iowa  321  ;  Herndon  v. 
Henderson,  41  Miss.  584.  In  the  absence  of  fraud  or  mistake  of  fact 
parol  evidence  is  not  admissible  to  contradict  or  vary  the  terms  of  a 
written  contract,  though  the  party  has  contracted  under  a  mistake  of 
law:  Potter  v.  Sewall,  54  Me.  142;  but  it  has  been  held  admissible  to 
show  fraud  or  mistake  :  Pendexter  v.  Carleton,  16  N.  H.  482 ;  Mallery  v. 
Leach,  35  Verm.  156  ;  Corlies  v.  How,  11  Gray  125 ;  Koop  v.  Handy,  41 
Barb.  454  ;  Hathaway  v.  Brady,  23  Cal.  121  ;  Van  Buskirk  v.  Day,  32 
111.  260  ;  Fisher  v.  Deibest's  Adm.,  54  Penn.  St.  460;  Murray  v.  Duke,  46 
Cal.  644.  When  an  indorsement  of  a  note  is  in  blank  to  show  the  actual 
agreement  as  to  the  indorsement,  as  that  it  was  to  be  without  recourse, 
on  the  ground  that  to  fill  the  blank  in  any  other  manner  is  a  fraud  : 
Harrison  v.  McKim,  18  Iowa  73.  So  to  identify  the  subject-matter  or 
parties-:  Noonan  v.  Lee,  2  Black  (S.  C.)  499  ;  Baldwin  t;.  Bank,  1  Wall. 
(S.  C.)  456  ;  Brooks  v.  Aldrich,  17  N.  H.  443  ;  Peabody  v.  Brown,  10 
Gray  45  ;  Morgan  v.  Spangler,  14  Ohio  (N.  S.)  102  ;  Farmers'  Co.  v.  Com- 
mercial Bank,  15  AVis.  424  ;  Wing  v.  Gray,  36  Verm.  261  ;  Aldridge  v. 
Eshleman,  46  Penn.  St.  420 ;  Abbott  v.  Abbott,  51  Me.  ,575;  Rugg  w. 
Hale,  40  Verm.  138 ;  Locke  v.  Rowell,  47  N.  II.  46 ;  Reed  v.  Ellis,  68  111. 
200  ;  Pope  V.  Machine  Co.,  52  Me.  535  ;  Guy  v.  Barnes,  29  Md.  103  ;  Mar- 
shall V.  Gridley,  46  111.  247;  Sargeant  v.  Solberg,  22  Wis.  132.  So  to 
show  an  independent  or  collateral  contract  or  part  not  reduced  to  wri- 
ting;  Joannes  v.  Mudge,  6  Allen  245;  Koop  v.  Handy,  41  Barb.  454; 
Weber  v.  Kingsland,  8  Bosw.  415;  Harbold  v.  Kuster,  44  Penn.  St.  392; 
Sessions  v.  Peay,  21  Ark.  100  ;  Sweet  v.  Stevens,  7  R.  I.  375  ;  Van  Bus- 
kirk V.  Boberts,  31  N.  Y.  661 ;  Hahn  v.  Doolittle,  18  Wis.  196 ;  Clarke  v. 
Tappin,  32  Conn.  56  ;  Silliman  v.  Tuttle,  45  Barb.  171  ;  Randall  v.  Tur- 
ner, 17  Ohio  St,  262 ;  Shepherd  v.  AVysong,  3  W.  Va.  335;  Branch  «;. 
Wilson,  12  Fla.  543  ;  Perry  v.  Central  R.  R.  Co.,  5  Cold.  138;  Field  v. 
Mann,  42  Verm.  01 ;  Hubbell  v.  Ream,  31  Iowa  289  ;  Weaver  v.  Fletcher, 
27  Ark.  510;  Basshor  v.  Forbes,  36  Md.  154  ;  Babcock  v.  Deford,  14  Kan. 
408  ;  Polk  v.  Anderson,  10  Ibid.  213  ;  Malone  v.  Dougherty,  79  Penn.  St. 


OF   WRITTEN    CONTRACTS.  44 

be  reduced  to  writing,  verbal  evidence  would  not  be 
admissible  to  show  that  it  was  agreed,  at  the  same  time, 
that  the  contractee  was  to  be  at  liberty,  on  payment  of 
£10,  to  substitute  Edinburgh  for  York;  but  verbal  evi- 
dence would  be  admissible  to  show  that  it  was  agreed 
next  day,  that,  on  payment  of  £10,  he  might,  if  he 
pleased,  substitute  Edinburgh  for  York;  for,  as  there  is 
no  rule  of  law  which  requires  such  a  contract  to  be 
reduced  into  writing,  it  might  have  been  made  by  words 
merely  spoken,  and  you  are  therefore  allowed  to  give 
parol  evidence — not  that  the  written  contract  did  not 
contain  the  intention  of  the  parties  at  the  time  of  draw- 
ing it  up — but  that  they  subsequently  altered  a  part  of 
it  by  spoken  words,  and  so,  in  fact,  made  a  new  agree- 
ment.{Jcf     This,  you  will  observe,  is  no  violation  of  the 

{k)  Judgment  of  Court  in  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C. 
L.  R.)  58. 

46.  To  show  that  party  signed  as  •surety  and  that  known  to  the  other 
party :  Riley  v.  Gregg,  16  AVis.  666.  AVhere  a  written  contract  for  the 
delivery  of  certain  articles  on  demand  names  no  place  of  delivery,  this 
may  be  afterwards  verbally  agreed  on  by  the  parties :  Barker  v.  Barker, 
16  N.  H.  333. 

Receipts  not  under  seal  are  always  open  to  explanation  and  even  to 
contradiction  by  parol  evidence  :  Hitt  v.  Slocum,  37  Verm.  524  ;  Dunham 
V.  Barnes,  9  Allen  352 ;  King  v.  Mitchell,  30  Ga.  164 ;  Dunagan  v.  Duna- 
gan,  38  Ibid  554-,  Winchester  v.  Grosvenor,  44  111.  425;  Dolan  v.  Frei- 
berg, 4  W.  Va.  101  ;  White  v.  Merrell,  32  111.  511.  The  exception  of 
receipts  must  be  confined  to  such  as  are  purely  receipts,  but  not  to  such 
as  are  in  the  nature  of  contracts :  Stapleton  v.  King,  33  Iowa  28  ;  Wilson 
V.  Derr,  69  N.  C.  137.  The  rule  that  parol  evidence  is  inadmissible  to 
contradict  or  vary  the  terms  of  a  valid  written  instrument  is  applied  only 
in  suits  between  the  parties  to  the  instrument  and  their  privies  :  Van 
Eman  v.  Stanchfield,  10  Minn.  255 ;  Hughes  v.  Sandal,  25  Tex.  162.  It 
does  not  apply  to  cases  arising  between  sureties ;  it  is  limited  to  the 
stipulations  between  the  parties  actually  contracting  with  each  other  by 
the  written  instrument:  Thomas  v.  Truscott,  53  Barb.  200  ;  Ilussman  v. 
Wilke,  50  Cal.  250. 

1  Jeffrey  v.  Walter,  1  Stark.  267  ;  Wright  v.  Crooks,  1  Scott's  N.  S. 
685  ;  Cummings  v.  Arnold,  3  Mete.  486 ;  Robinson  v.  Bachelder,  4  N.  II. 


44  smith's  law  of  contracts. 

rule,  or  of  the  reason  of  it,  which  is  that  what  the  par- 
ties have  chosen  to  confide  to  a  written  document,  shall 
not  be  proved  or  varied  by  a  kind  of  evidence  to  which, 
as  appears  by  their  conduct,  they  did  not  choose  to 
trust.  But  though  this  may  be  done  where  the  contract 
is  one  which  the  law  does  not  require  to  be  in  writing, 
yet  a  little  consideration  will  show  that  where  a  writing 
n]:ir-\  is  ^necessary,  it  cannot  be  allowed;  for,  if  it 
were,  the  effect  of  the  verbal  evidence  would  be 
to  turn  a  contract  which  the  law  requires  to  be  in 
writing  into  one  partly  in  writing  and  partly  in  words. 
Therefore,  in  Goss  v.  Lord  Nugent,  (/)  it  was  decided 
that  a  contract  for  the  purchase  of  land  (which,  by  the 
Statute  of  Frauds,  is  required  to  be  written)  cannot  be 
altered  by  a  verbal  arrangement,  although  made  subse- 
quently. The  same  reason  would  obviously  apply  to  a 
contract  for  the  sale  of  goods,  or  to  any  contract  required 
by  law  to  be  in  writing. (m)  "Such  an  agreement  {i.  e., 
the  one  supposed  to  be  altered  by  parol)  must,"  said  the 
Lord  Chancellor,  (in  Emmet  v.  Dewhirst,)  "be  proved; 
it  cannot  be  by  parol,  therefore  it  cannot  be  proved  at 
all."(w)i 

[1)  5  B.  &  Ad.  (27  E.  C.  L.  R.)  58 ;  Stowell  v.  Robinson,  3  B.  N.  C. 
(32  E.  C.  L.  R.)  928. 

(m)  Stead  v.  Dawber,  10  A.  &  E.  (37  E.  C.  L.  R.)  57;  Marshall  v. 
Lynn,  6  M.  &  W.  109. 

[n)  Emmet  v.  Dewhirst,  21  L.  J.  (Ci.)  497  ;  3  Mac.  &  G.  587.'. 

40 ;  Keating  v.  Price,  1  Johns.  Cas.  22 ;  Dearborn  v.  Cross,  7  Cow.  50  ; 
Frost  V.  Everett,  5  Ibid.  497 ;  Yonqua  y.  Nixon,  1  Pet.  C.  C.  221  ;  Boyd 
V.  Bertrand,  2  Eng.  321. 

^  Both  acts  and  words  are  inadmissible  to  vary  a  written  contract, 
though  the  parties  have  acted  on  the  verbal  alteration  for  some  years  : 
Giraud  v.  Richmond,  15  L.  J.  (C.  P.)  180.  The  same  point  was  decided, 
on  the  authority  of  Goss  v.  Lord  Nugent,  in  the  late  case  of  Marshall  v. 
Lynn,  6  M.  &.  "W.  109,  with  respect  to  a  contract  for  the  sale  of  goods 
falling  witliin  the  operation  of  the  same  statute.  So  in  Blood  v.  Good- 
rich, 9  Wend.  68. — r. 


OF    WRITTEN    CONTRACTS.  45 

Another  celebrated  distinction  on  this  subject  is,  that 
in  a  written  contract,  or,  indeed,  in  any  other  written 
instrument,  if  there  be  a  patent  amhiguity,  it  never  is 
allowed  to  be  explained  by  verbal  evidence,  although  a 
latent  amhiguity  is  so.(6>)  The  meaning  of  the  expres- 
sions patent  and  latent  with  reference  to  this  subject  is 
as  follows  : — 

A  patent  ambiguity  is  one  which  appears  on    v^s.ac'-^  \ 
the  *face  of  the  instrument  itself,  and  renders  it  j 

ambiguous  and  unintelligible  :  as  if  in  a  will  there  were 
a  hlank  left  for  the  devisee's  name ;  (/>)  or  as  if,  in  the  1 
body  of  a  bill  of  exchange,  it  aj)peared  to  have  been 
drawn  for  <£200,  and  in  the  margin  the  figures  usually 
put  there  expressed  that  it  was  drawn  for  £245.(5')  ^^^ 
this  latter  instance  the  Court  refused  to  admit  evidence 
that  the  words  "  and  forty-five "  had  been  omitted  by 
mistake. 

A  latent  ambiguity  is  where  the  instrument  itself  is 
on  the  face  of  it  intelligible  enough,  but  a  difficulty 
arises  in  ascertaining  the  identity  of  the  subject-matter 
to  which  it  applies,  as  if  a  devise  were  to  John  Smith. 
without  further  description.  In  that  case  the  devise 
would  be  intelligible  enough  on  the  face  of  it,  and  if 
there  were  only  one  John  Smith  in  being,  no  diificulty 
could  arise.  But  as  there  are  several  thousands,  it 
would  be  impossible  to  tell  which  of  them  was  meant 
without  admitting  verbal  evidence,  which  would  accord- 
ingly be  admitted.  This  would  be  what  is  called  a 
latent  ambiguity,  because  it  would  not  appear  on  the 
face  of  the  instrument,  but  would  lie  hid  till  evidence 

(o)  Bacon's  Maxims,  reg.  23.  See  Dodd  v.  Burchall,  31  J.  L.  (Ex.) 
364. 

(j;)  Hunt  V.  Hart,  3  Bro.  C.  C.  311;  Clayton  v.  Lord  Nugent,  13 
M.  &  W.  200. 

(j)  Saunderson  v.  Piper,  5  Bing.  N.  0.  (35  E.  C.  L.  R.)  425. 


46  smith's  law  of  contracts. 

had  been  produced,  showing  that  there  were  a  great 
number  of  persons  corresponding  in  name  with  the  de- 
visee.^ 
r*471        *The  force  and  application  of  this  rule,  and  the 

distinction  between  these  two  kinds  of  ambiguity, 
are  so  happily  expressed  and  illustrated  in  a  judgment 
of  the  Court  of  Exchequer,  in  the  case  of  Doe  dem. 
Hiscocks  V.  Hiscocks,(r)  that,  although  that  judgment 
was  given  on  the  case  of  a  will,  it  will  be  very  useful 
to  introduce  a  portion  of  it  here.  '*  The  object  in  all 
cases,"  said  the  Court,  "is  to  discover  the  intention  of 
the  testator.  The  first  and  most  obvious  mode  of  doing 
this  is,  to  read  his  will  as  he  has  written  it,  and  collect 
his  intention  from  his  words.  But,  as  his  words  refer 
to  facts  and  circumstances  respecting  his  property  and 
his  family,  and  others  whom  he  names  or  describes  in 
his  will,  it  is  evident  that  the  meaning  and  application 
of  his  words  cannot  be  ascertained  without  evidence  of 
all  those  facts  and  circumstances,  (s)  To  understand 
the  meaning  of  any  writer,  we  must  first  be  apprised  of 
the  persons  and  circumstances  that  are  the  subjects  of 
his  allusions  or  statements,  and  if  these  are  not  fully 
disclosed  in  his  work,  we  must  look  for  illustration  to 
the  history  of  the  times  in  which  he  wrote,  and  to  the 
works  of  contemporaneous  authors.  All  the  facts  and 
p.;., 0-1    circumstances,  therefore,  respecting  ^persons  or 

property  to  which  the  will  relates,  are  undoubt- 

(r)  5  M.  &  W.  363.  See  Doe  d.  Allen  v.  Allen,  12  A.  &.  E.  (40  E.  C. 
L.  R.)  451  ;  Doe  d.  Gains  v.  Rouse,  5  C.  B.  (57  E.  C.  L.  R.)  422 ;  Grant 
V.  Grant,  L.  R.  5  C.  P.  380,  727  (Ex.  Ch.) ;  39  L.  J.  (C.  P.)  140,  272. 

(s)  See  Burgess  v.  Wickham,  31  L.  J.  (Q.  B.)  17. 

^  See  on  the  subject  of  patent  and  latent  ambiguity,  Campbell  v.  .John- 
son, 44  Mo.  247;  Pollen  v.  Le  Roy,  30  N.  Y.  549;  Pettit  v.  Shepard, 
32  N.  Y.  97  ;  Bell  v.  Woodward,  46  N.  H.  315 ;  Piper  v.  True,  36  Cal. 
606. 


OF    WRITTEN    CONTRACTS.  48 

edly  legitimate  and  often  necessary  evidence,  to  enable 
ns  to  understand  the  meaning  and  application  of  his 
words.  Again,  the  testator  may  have  habitnally  called 
certain  persons  or  things  by  peculiar  names,  by  which 
they  were  not  commonly  known.  If  these  names  should 
occur  in  his  will,  they  could  be  only  explained  and  con- 
strued by  the  aid  of  evidence,  to  show  the  sense  in 
which  he  used  them,  in  like  manner  as  if  his  will  were 
written  in  cypher  or  in  a  foreign  language.  The  habits 
of  the'  testator  in  these  particulars  must  be  receivable 
as  evidence,  to  explain  the  meaning  of  his  will. 

"  But  there  is  another  mode- of  obtaining  the  intention 
of  the  testator,  which  is,  by  evidence  of  his  declarations, 
of  the  instructions  given  for  his  will,  and  other  circum- 
stances of  the  like  nature,  which  are  not  adduced  for 
explaining  the'  words  or  meaning  of  his  will,  but  either 
to  supply  some  deficiency  or  remove  some  obscurity,  or 
to  give  some  effect  to  expressions  that  are  unmeaning 
or  ambiguous.     Now  there  is  but  one  case  in  which  it 
appears  to  us  that  this  sort  of  evidence  of  intention  can 
properly  be  admitted,  and  that  is  where  the  meaning  of 
the  testator's  words  is  neither  ambiguous  nor  obscure, 
and  where  the  devise  is  on  the  face  of  it  perfect  and  in- 
telligible, but,  from  some  of  the  circumstances  admitted 
in  proof,  an  ambiguity  arises  as  to  which  of  the  two  or 
more  ^things,  or  which  of  the  two  or  more  per- 
sons (each  answering  the  words  in  his  will),  the    ^       -' 
testator  intended  to  express.     Thus,  if  a  testator  devise 
his  manor  of  S.  to  A.  B.,  and  has  two  manors,  of  North 
S.  and   South  S.,  it  being  clear  he  means  to  devise  one 
only,  whereas  both  are  equally  denoted  by  the  words  he 
has  used ;  in  that  case  there  is  what  Lord'  Bacon  calls 
'  an  equivocation,'  i.  e.,  the  words  equally  apply  to  either 
manor,  and  evidence  of  previous  intention  may  be  re- 


49  smith's  law  of  contracts. 

ceived  to  solve  this  latent  ambiguity  ;  for  the  intention 
shows  what  he  meant  to  do ;  and  when  you  know  that, 
you  immediately  perceive  that  he  has  done  it  by  the 
general  words  he  has  used,  which  in  their  ordinary 
sense,  may  properly  bear  that  construction.  It  appears 
to  us,  that,  in  all  other  cases,  parol  evidence  of  what 
was  the  testator's  intention  ought  to  be  excluded,  upon 
this  plain  ground,  that  his  will  ought  to  be  made  in 
writing ;  and  if  his  intention  cannot  be  made  to  appear 
by  the  writing,  explained  by  circumstances,  there  is  no 
will." 

A  latent  ambiguity,  therefore,  is  where,  on  attempt- 
ing to  carr}^  out  the  contract,  it  is  found  that  the  words 
used  apply  equally  to  two  or  more  different  things,  and 
then,  the  latent  ambiguity  having  been  shown  by  evi- 
dence, further  evidence  is  admissible  to  show  which  of 
them  was  the  thing  intended.  (^)  Thus,  where  pre- 
r:i:-ni  viously  to  a  ^contract  for  the  purchase  of  wool 
being  reduced  into  writing,  a  conversation  had 
taken  place  between  the  buyer  and  the  seller,  in 
which  the  latter  had  said  that  he  had  a.  quantity  of  wool 
partly  of  his  own  clip  and  partly  contracted  to  be 
bought  of  other  persons,  and  by  the  contract  when  re- 
duced to  writing,  it  appeared  that  the  defendant  pur- 
chased of  the  plaintiff  a  certain  quantity  of  w^ool  de- 
scribed therein  as  "  your  wool,"  it  was  considered  that 
evidence  of  the  conversation  was  admissible  to  show 
what  the  parties  meant  by  the  term  "your  wool." (?() 
"  The  subject-matter  of  the  contract,"  said  Lord  Camp- 
bell, C.  J.,  "  was  '  your  wool,'  and  I  am  of  opinion  that 

[f)  See  the  judgment  of  Bovill,  C.  J.,  in  Grant  v.  Grant,  L.  R.  5 
(,'.  P.  390;  39  L.J.  (C.  P.)'l46. 

[u)  Macdonald  v.  Longbottom,  1  E.  &  E.  (102  E.  C.  L.  R.)  977  ;  28 
L.  J.  (Q.  B.)  293';  in  Exch.  Ch.,  1  E.  &  E.  (102  E.  C.  L.  R.)  987  ;  29 
L.  J.  (Q.  B.)  256. 


OF    WRITTEN    CONTRACTS.  50 

when  there  is  a  contract  for  the  sale  of  a  specific  subject- 
matter,  parol  evidence  may  be  received  to  show  what 
the  nature  of  that  subject-matter  was,  and  that  in  effect 
may  be  by  proving  what  was  in  the  knowledge  of  the 
parties  at  the  time  of  the  contract  being  made.  Now, 
in  order  to  show  that,  it  was  proposed  to  prove  the  con- 
versation between  the  plaintiff  and  the  defendant,  in 
which  it  was  mentioned  that  the  plaintiff  had  wool  of 
his  own,  and  also  that  he  had  contracted  for  the  pur- 
chase of  other  wool.  There  was  knowledge  in  both 
parties  of  what  the  subject-matter  was.  There  was  an 
offer  to  buy  '  your  wool ;'  that  was  the  specific  subject- 
matter  which  *was  to  be  purchased.  Then  is  pri-i 
there  any  difficulty  in  admitting  what  passed  at 
that  conversation  ?  I  think  that  there  is  none.  It  is 
no  part  of  the  contract,  and  is  not  adding  to  or  varying 
a  written  contract,  but  it  is  evidence  which  enables  us 
to  say  what  the  contract  referred  to.  It  seems  that 
there  was  a  reference  to  the  wool  which  was  in  the  pos- 
session of  the  defendant,  partly  obtained  from  his  own 
flocks,  and  partly  that  which  he  had  purchased  from 
other  people." 

For  the  same  reason,  when  the  terms  of  a  written 
contract  signed  by  the  defendant  were,  "in  considera- 
tion of  my  entering  on  your  employ  at  such  a  salary, 
&c.,"  not  specifying  what  the  employment  was,  evidence 
that  the  defendant  being  in  the  plaintiff's  service,  a 
vacancy  in  another  department  of  his  business  occurred, 
which  the  defendant  undertook  to  fill,  was  admitted  to 
show  that  it  was  this  vacancy  to  which  the  terms  of  the 
written  contract  referred.  (.^') 

There  is  one  exception,  indeed,  engrafted'  on  the  rule 
which  forbids  the  reception  of  parol  evidence  for  the 

[x]  Mumford  v.  Gething,  29  L.  J.  (C.  P.)  105. 


51  smith's  law  of  contracts. 

purpose  of  qualifying  the  sense  of  a  written  contract ;  it 
occurs  where  parties  have  contracted  with  reference  to 
some  known  and  established  usage.  In  such  cases  the 
usage  is  sometimes  allowed  to  be  engrafted  on  the  con- 
tract, in  addition  to  the  express  written  terms.  When 
p...rr)-j  they  have  so  ^contracted,  the  reference  in  their 
minds  to  the  usage  is  similar  to  that  reference 
which  exists  in  all  men's  minds  (when  making  a  con- 
tract) to  the  general  laAV.  In  the  latter  case  they  in- 
tend that  where  their  contract  is  silent,  their  rights 
shall  be  those  which  the  general  law  annexes  to  the 
stipulations  which  they  have  expressed;  and  in  the 
former  they  intend  that  the  rules  which  the  usage  of  the 
place  or  trade  annexes,  shall  regulate  their  rights  in 
those  particulars  in  which  their  agreement  is  silent.  In 
both  cases  they  can  exclude  the  general  law  or  the 
usage  by  their  stipulation,  and,  in  both  are  liable  to  the 
general  law  or  to  the  usage  where  their  coiitract  does 
not  exclude  their  operation,  (^)  by  showing  expressly  or 
impliedly,  that  they  did  not  intend  to  be  bound  by  it. 
The  notoriety  of  the  custom  makes  it-  part  of  the  con- 
tract. For  the  custom  may  be  so  universally  followed 
in  the  place  or  trade  in  which  the  contract  was  made, 
that  no  one  can  be  supposed  to  have  contracted  without 
looking  upon  it  as  part  of  his  contract.  (;«)^ 

{y)  Senior  v.  Armitage,  1  Holt  N.  P.  (3  E.  C.  L.  R.)  197  ;  Hutton  r. 
Warren,  1  M.  &  W.  466. 

(2)  Queen  v.  Stoke-upon-Trent,  5  Q.  B..(48  E.  C.  L.  R.)  303. 

^  A  usage  of  trade,  when  adopted  by  the  implied  understanding  of  the 
parties,  is  as  obligatory  as  if  incorporated,  provided  such  usage  is  not 
repugnant  to  nor  inconsistent  with  the  terms  of  the  contract,  and  is  not 
inconsistent  with  existing  rules  of  law  :  Appleman  v.  Fisher,  34  Md. 
540;  Lamb.  v.  Klaus,  30  Wis.  94;  Schenck  v.  Griffin,  38  N.  J.  (Law) 
462;  Insurance  Co.  v.  Wright,  1  Wall.  (S.  C.)  456  ;  Deshler  v.  Been,  32 
111.  368  ;  Leonard  v.  Peoples,  30  Ga.  61.  Usage  of  a  particular  trade  is 
inadmissible  to  affect  the  construction  of  a  contract,  unless  notice  of  it 


OF    WRITTEN    CONTRACTS.  52 

Upon  such  reasonings  it  was  held,  in  the  leading  case 
of  Wigglesworth  v.  Dallison,(a)  where  a  lease  of  land 
under  seal  was  made  for  a  fixed  term  of  years  that  a 
custom  of  the  parish  in  which  the  land  lay,  that  r^c  o-i 
the  tenant  should,  after  the  ^expiration  of  the 
term,  have  the  way-going  crop,  w^as  obligatory  on  the 
landlord ;  that  custom  not  altering  or  contradicting  the 
agreement  in  the  case,  but  only  superadding  a  right  as 
"consequential  to  the  taking.  Very  similar  to  this  was 
the  equally  leading  case  of  Hutton  v.  Warren,  (J)  where 
the  plaintiff  had  held  under  a  lease  by  deed  which  had 
expired,  but,  continuing  to  occxipy  without  further  stipu- 
lation, was,  according  to  law,  bound  by  the  terms  of  the 
expired  lease.  There  was  a  covenant  in  the  lease,  that 
he  would  consume  on  the  farm  three-quarters  of  the  hay 
and  straw  raised  thereon,  and  on  certain  other  property 
not  comprised  in  the  lease,  and  would  leave  for  the  land- 
lord such  of  the  manure  thence  arising  as  w^as  not  used 
upon  the  farm,  receiving  a  reasonable  price  for  it.  There 
was  also  a  custom  of  the  neighborhood  that  the  tenant 

(a)  Dou^l.  201  ;  1  Smith  L.  C.  520,  5th  ed. 
\h)   1  M.  &.  W.  466. 

can  be  brought  home  to  the  party  against  whom  it  is  invoked  :  Martin 
V.  Maynard,  16  N.  H.  165.  Evidence  of  custom  cannot  control  an  ex- 
press contract,  unless  the  attendant  circumstances  imply  that  the  parties 
contracted  with  reference  to  it :  Rapert  v.  Scroggins,  40  Ind.  195.  Usage 
is  not  allowed  to  engraft  on  a  contract  any  obligation  inconsistent  with 
the  law  :  Ilaskins  v.  Warren,  115  Mass.  514  ;  and  see  Rindskoff  v.  Bar- 
rett, 14  Iowa  101  ;  Boody  v.  Rutland  R.  R.  Co.,  3  Blatch.  C.  C.  R.  25  : 
Meaher  tj.  Lutkin,  21  Texas  383  ;  Wallace  v.  Morgan,  23  Ind.  399  •,  Fay 
V.  Struwn,  32  111.  295  ;  Bliss  v.  Roper,  9  Allen  339  ;  Sturges  v.  Buckley, 
32  Conn.  18,  265  ;  Fox  v.  Parker,  44  Barb.  541  ;  Lombardo  v.  Case,  45 
Ibid.  95  ;  Overman  v.  Hoboken  City  Bank,  1  Yroom  61  ;  Exchange 
Bank  v.  Cookraan,  1  West  Va.  60  ;  Detwiler  v.  Green,  Ibid.  109 ;  Lowe 
V.  Lehman,  15  Ohio  St.  179  ;  Niagara  Co.  Bank  v.  Baker,  Ibid.  68  : 
Thompson  v.  Riggs,  5  Wall.  (S.C.)  663  ;  Dodd  v.  Farlow,  11  Allen  426  ; 
Saint  V.  Smith,  1  Cold.  51  ;  Barnes  v.  Ingalls,  39  Ala.  193. 


53  smith's  law  of  contracts. 

of  a  farm  should  receive  from  the  landlord  or  incommg 
tenant  a  reasonable  allowance  for  seed  and  labor  be- 
stowed on  the  arable  land  in  the  last  year  of  his  tenancy, 
and  should  leave  the  manure  for  the  landlord  if  he  would 
purchase  it.  The  Court  considered  that  in  this  case  the 
only  difference  material  to  the  question  between  the 
(covenant  and  the  custom  was  that  the  covenant  obliged 
the  tenant  to  spend  on  the  farm  more  than  its  own  pro- 
duce upon  being  paid  for  it,  which  was  not  incom- 
patible with  the  custom,  but  virtually  left  it  in  its  full 
operation. 

r...r(-i        *But  the  courts  never  admit  evidence  of  an 
■'•o4  ... 

usage   incompatible  with  the  written  contract; 

for,  in  the  words  of  Mr.  Baron  Alderson,  in  the  case  of 
Clarke  v.  Roystone,(c)  "  Where  a  stipulation  is  incon- 
sistent with  the  custom  of  the  country,  the  contract  must 
prevail  and  the  custom  of  the  country  must  be  excluded." 
In  these  cases  it  appears  to  be  simply  a  question  whether 
the  words  of  the  contract  themselves  sufficiently  disclose 
the  full  import  of  the  contract :  if  so,  no  custom  can 
vary  it,  and  no  evidence  of  custom  is  admissible. 

But  a  tenant  may  avail  himself  of  a  local  custom  to 
take  an  away-going  crop  after  the  expiration  of  his  term 
under  a  lease,  although  the  terms  of  holding  during  the 
continuance  of  it  are  inconsistent  with  the  custom,  if  it 
contain  no  stipulations  as  to  the  mode  of  quitting. {d) 
For  it  is ,  evident  that  the  rights  of  the  landlord  and 
tenant  may  be  governed  by  the  terms  of  the  agreement 
during  the  tenancy,  and  by  the  terms  of  the  custom 
immediately  afterwards.^ 

(c)  13  M.  &.  W.  752. 

{d)  Holding  V.  Piggot,  7  Bing.  (20  E.  C.  L.  R.)  465. 

^  Thus,  in  Coit  v.  Ins.  Co.,  7  Johns.  385,  evidence  was  admitted  to 
show  that,  by  general  understanding,  the  word  "  rants,''   in  New  York 


OF   WRITTEN   CONTRACTS.  54 

The  following  example  relative  to  annexing  a  custom 
to  the  stipulations  in  a  lease  is  also  well  worth  observing. 

policies  of  insurance,  was  limited  to  roots  perishable  in  their  own  nature, 
and  therefore  excluded  sai'saparilla  ;  and  in  Astor  v.  Ins.  Co.,  7  Cow. 
202,  the  usage  oifurs  and  sMns  was  admitted,  to  show  the  meaning  of 
those  words  in  a  policy  ;  and  other  instances  in  which  usage  was  similarly 
permitted,  by  way  of  explanation,  will  be  found  in  Taylor  v.  Briggs,  2  C. 

6  P.  (12  E.  C.  L.  K.)  525;  Smith  v.  Wilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.) 
728;  Baker  «.  Ludlow,  2  Johns.  Cas.  289;  Macy  v.  Ins.  Co.,  9  Mete.  362; 
Putnam  v.  TiUotson,  13  Ibid.  517  ;  Eyre  w.Ins.  Co.,  5  W.  &  S.  116;  Alle- 
gre  V.  Ins.  Co.,  6  Harr.  &  Johns.  408  ;  Allegre's  Adm'rs  v.  Maryland  Ins. 
Co.,  2  Gill  &  Johns.  136.  So,  in  a  late  case,  where  *a  vessel  was  libelled 
for  freight  of  flour,  the  respondents  preved  that  it  had  been  damaged  by 
being  stowed  in  the  hold,  on  the  top  of  moist  sugar,  and  the  libellants 
were  permitted  to  show  an  established  custom  of  storage  in  general 
ships  from  New  Orleans  to  the  northern  ports — "  it  being,  of  course, 
well  understood  by  the  respondents  that  their  flour  would  be  thus  shipped, 
unless  they  gave  instructions  to  the  contrary,  they  must  be  deemed  to  have 
assented  to  the  mode  of  shipment:"  Baxter  w.  Leland,  1  Blatchf.  526. 
Evidence  of  a  usage  is  not,  however,  admissible  when  the  meaning  is 
certain  and  not  doubtful :  Gross  v.  Criss,  3  Gratt.  262  ;  Macomber  v. 
Parker,  13  Pick.  176  ;  Brown  v.  Brown,  8  Mete.  577  ;  Sleght  v.  Rhine- 
lander,  1  Johns.  92,  reversed  on  another  point  in  2  Ibid.  531  ;  nor  where 
it  will  contradict  the  written  contract,  as  where  a  policy  was  made  in  the 
usual  form  upon  the  ship,  her  tackle,  apparel,  boats,  &c.,  evidence  of 
usage  that  the  underwriters  never  pay  for  the  loss  of  boats  slung  on  the 
quarter  was  held  inadmissible  :  Blackett  v.  Ins.  Co.,  2  Cr.  &  Jerv.  244  ; 
and  to  the  same  efl'ect  are  Sch.  Reeside,  2  Sumn.  568  ;  Turney  v.  Wilson, 

7  Yerg.  340  ;  Allen  v.  Dykers,  3  Hill  (N.  Y.)  593  ;  Hinton  v.  Locke, 
5  Ibid.  437.  And  it  has  also  been  said  that  a  usage  will  not  be  recog- 
nised in  a  court  of  law  unless  it  be  reasonable,  and  adapted  to  increase 
trade  and  promote  fair  dealing  between  the  parties :  Marcy  v.  Ins.  Co., 
9  Mete.  363  ;  Bowen  v.  Stoddard,  10  Ibid.  381.  The  student  will  And 
the  cases  upon  this  subject  collected,  and  the  distinctions  carefully 
noticed,  in  the  American  note  to  Wigglesworth  v.  Dallison,  1  Smith's 
Lead.  Cas.  588.  The  latter  cases  show  a  disposition  rather  to  restrain 
than  to  enlarge  the  introduction  of  such  evidence  :  Donnell  v.  Columbia 
Ins.  Co.,  2  Sumn.  377 ;  and  under  any  circumstances  it  is  said  that  a 
usage  must  not  be  proved  by  isolated  instances,  but  be  so  certain,  uni- 
form and  notorious,  that  it  must  probably  have  been  understood  by  the 
parties  as  entering  into  the  contract:  Cope  v.  Dodd,  13  Penn.  St.  33  : 
Nichols  V.  De  Wolf,  1  R.  I.  277.— r. 

"When  the  terms  of  a  contract  are  clear,  evidence  of  usage  is  inadmis- 


54  smith's  law  of  contracts, 

A  lease  for  seven  years  contained  a  clause  "  that  the 
tenant  should,  during  the  term,  consume  with  stock  on 
the  farm  all  the  hay,  straw,  and  clover  grown  thereon, 

sible  to  vary  its  effect :  Geor2;e  v.  Bartlett,  2  Fost.  496 ;  Catlin  v.  Smith, 
24  Verm.  85  ;  Wadsworth  v.  Alcott,  2  Seld.  64.  In  the  absence  of  clear 
stipulations  in  contracts,  usage  of  trade  or  business  is  admissible  to 
show  the  intention  of  the  parties :  Leach  v,  Beardslee,  22  Conn,  404 ; 
Dixon  V.  Dunham,  14  111.  324.  If  it  be  shown  or  may  be  fairly  pre- 
sumed that  the  parties  to  a  contract  entered  into  it  in  reference  to  a  cus- 
tom existing  in  the  city  where  they  did  business,  and  where  they  con- 
tracted, the  general  law  must  give  way  to  the  custom  :  Fulton  Ins.  Co. 
V.  Milner,  23  Ala.  420  ;  Sou  tier  v.  Kellerman,  18  Mo.  509.  The  custom 
must  be  of  such  extent,  universality  and  antiquity  as  to  warrant  the 
conclusion  that  it  was  known  to  the  contracting  parties,  and  that  they 
made  their  contract  with  reference  to  it :  Dixon  v.  Dunham,  14  111.  324 ; 
Adams  r.  Otterback,  15  How.  S.  C.  539.  It  must  be  nniform,  known, 
and  established,  and  whether  it  is  so  is  a  question  of  fact  for  the  jury  : 
Fai-nsworth  v.  Chase,  19  N.  H.  534.  To  vary  the  ordinai-y  meaning  of 
plain  words  in  a  contract,  the  evidence  must  show  a  special  custom,  pre- 
cise, definite  and  universal  where  it  exists  :  Steward  v.  Scudder,  4  Zabr. 
96.  Proof  of  a  local  usage  can  never  be  received  to  vary  the  construc- 
tion that  the  law  would  otherwise  give  to  a  contract,  unless  it  is  clearly 
proved  that  its  existence  was  known  to  the  parties,  and  that  their  con- 
tract was  made  with  reference  to  it :  Wheeler  v.  Newbould,  5  Duer  29  ; 
Martin  v.  Maynard,  16  N.  H.  165  ;  Steel  v.  M'Tyer,  31  Ala.  667.  No 
custom,  however  general,  can  be  given  in  evidence  to  vary  or  control  the 
express  terms  of  a  contract :  Caldwell  v.  Meek,  17  111.  220  •,  Wheeler  v. 
Nurse,  20  N.  H.  220.  It  cannot  be  laid  down  as  a  positive  rule  that 
more  than  one  witness  is  required  to  prove  a  usage  :  Partridge  v.  For- 
syth, 20  Ala.  200  ;  contra,  Bissell  v.  Ryan,  23  111.  566.  An  isolated 
instance  is  not  sufficient,  nor  the  custom  of  one  person  :  Burr  v.  Sickles, 
17  Ark.  428.  A  usage  must  be  notorious,  certain,  uniform,  reasonable 
and  legal :  Townsend  v.  Whitby,  5  Harring.  55.  And  see  Oelricks  v. 
Ford,  23  Hoav.,(S.  C.)  49;  Dalton  v.  Daniels,  2  Hilt.  472;  Given  v. 
Charron,  15  Md.  502  ;  Berry  v.  Cooper,  25  Ga.  543  ;  Shackelford  v.  New 
Orleans  R.  R.  Co.,  37  Miss.  202.  It  can  be  proved  only  by  witnesses  who 
have  had  actual  experience  of  it,  not  by  their  own  opinions :  Ibid.  A 
general  custom  or  a  special  custom  affecting  the  particular  locality  or 
trade,  if  proved,  will  be  the  law  of  the  contract :  Hursh  v.  North,  40 
Penn.  St.  241.  A  custom  of  the  country  which  sanctions  any  contriv- 
ance by  which  creditors  can  get  more  than  legal  interest  is  bad  :  Greene 
V.  Tyler,  39  Ibid.  361.  When  a  custom  is  so  universal  and  of  such  long 
standing  that  all  men  are  presumed  to  know  it,  the  Court  will  take  judi- 


OF    WRITTEx^   CONTRACTS.  00 

which  manure  should  be  *used  on  the  farm;  and  purr-i 
should,  in  the  last  year  of  the  term,  leave  not 
less  than  fourteen  acres  of  land  summer  fallowed, 
manured  with  a  full  quantity  of  manure,  and  sown  in 
good  time  for  sheep  feed."  But  there  was  a  custom  in 
the  parish  that  an  out-going  tenant  who,  on  coming  in, 
had  paid  for  the  straw,  was  entitled  to  be  paid  for  it  on 
going  out,  which  payment  on  coining  in  had  in  fact  been 
made  by*  the  plaintiff.  It  was  held  that  the  provision 
in  the  lease  did  not  prescribe  anything  to  be  done  with 
the  straw  on  quitting,  and  that  the  custom  bound  the 
outgoing  tenant  to  leave  the  straw,  and  entitled  him  to 
be  paid  for  it.(e)  But  in  a  case  where,  by  the  custom 
of  the  country,  the  outgoing  tenant  was  entitled  to  an 
allowance  for  foldage  from  the  incoming  tenant,  but 
the  lease  under  which  the  former  had  held  specified 
certain  payments  to  be  made  by  the  incoming  to  the 
outgoing  tenant  at  the  time  of  quitting  the  premises, 
among  which  there  was  not  included  any  payment  for 
foldage ;  the  Court  considered  that  the  terms  of  the. 
lease    excluded    the    custom,    and    that    the    outgoing 

(e)  Muncey  v.  Dennis,  26  L.  J.  (Ex.)  66  ;  1  H.  &  N.  216. 

cial  notice  of  it.     Such  is  the  custom  of  banks  to  allow  their  customers 
to  withdraw  their  deposits  in  parcels  :  Munn  v.  Burch,  25  111.  35. 

There  is  a  strong  and  increasing  disinclination  of  the  courts  to  allow 
the  general  laws  of  the  country  to  be  varied  by  proof  of  local  usages. 
Such  a  usage  is  binding  only  on  the  ground  that  the  party  sought  to  be 
charged  contracted  with  reference  to  it.  The  evidence  must  be  such  as 
to  clearly  authorize  the  presumption  that  he  had  a  knowledge  of  it.  It 
must  be  of  such  age,  such  uniformity  of  observance,  such  certainty  and 
fixedness  of  character,  and  of  such  notoriety,  that  a  jury  would  feel 
clear  in  saying  that  it  was  known  to  the  party  sought  to  be  affected  by 
it:  Caldwell  v.  Dawson,  4  Mete.  (Ky.)  121.  Proof  of  u"Sage  can  only  be 
be  received  to  show  the  intention  or  understanding  of  the  parties  in  the 
absence  of  a  special  agreement :  Fay  v.  Strawn,  32  111.  295  ;  Meaher  v. 
Lufkin,  21  Tex.  383. 


55  smith's  law  of  contracts. 

tenant  was  not  entitled  to  any  allowance  in  respect  of 
foldage.(/) 

Parol  evidence  is  admissible  to  annex  customary  inci- 
dents to  written  contracts,  not  only  between  landlord 
r...-^T  and  tenant,  but  in  commercial  and  other  *trans- 
actions  of  life  in  which  known  usages  have  been 
established. 

Thus,  a  person  employing  a  broker  on  the  Stock  Ex- 
change impliedly  gives  him  power  to  act  in  accordance 
with  the  rules  there  established,  although  he  makes  no 
mention  of  them  in  his  instructions,  and  although  he 
may  even  be  ignorant  of  them.(^)  But  of  course  the 
rules  by  which  he  so  gives  the  broker  authority  to  act, 
must  be  rules  existing  when  the  contract  is  made,  not 
such  as  are  made  after  it  is  completed.  (A)  Thus  also 
an  agreement  in  writing  to  serve  from  11th  November 
1815,  to  11th  November  1817,  at  certain  wages,  ex- 
pressed as  follows,  "We"  [i.  e.,  the  servants)  "engage 
to  lose  no  time  on  our  account,  to  do  our  work  well  and 
behave  ourselves  in  every  respect  as  good  servants," 
was  considered  consistent  with  a  usage  in  the  particular 
trade  for  servants,  under  similar  contracts,  to  have  cer- 
tain holidays  and  Sundays  to  themselves.  (^) 

In  another  instance  there  was  an  agreement  in  writ- 

P^r-j-i    ing   between  a  master   and   a   servant   in   the 

^woollen  and  mohair  cloth  manufacture,  that  the 

(/)  Webb  V.  Plummer,  2  B.  &  A.  746  ;  see  Roberts  v.  Barker,  1  C.  & 
M.  808. 

[g]  Sutton  V.  Tatham,  10  A.  &  E.  (37'E.  C.  L.  R.)  27  ;  see  Bayliffe  v. 
Butterworth,  1  Exch.  425  ;  Stewart  v.  Cauty,  8  M.  &  W.  IGO  ;  Bayley  v. 
Wilkins,  7  C.  B.  (62  E.  C.  L.  R.)  886  ;  Taylor  v.  Stray,  26  L.  J.  (C.  P.) 
185,  287  ;  2  C.  B.  (N.  S.)  (89  E.  C.  L.  R.)  175  ;  Smith  v.  Lindo,  27  L.  .J. 
(C.  P.)  335;  Grissell  v.  Bristowe,  L.  R.  4  C.  P.  (Ex.  Ch.)  36,  reversing' 
Ibid.  8  C.  P.  112 ;  s.  c.  37  L.  J.  (C.  P.)  89 ;  38  Ibid.  10. 

[h)  Westropp  V.  Solomon,  8  C.  B.  (65  E.  C.  L.  R.)  345. 

(i)  R.  V.  Stoke-upon-Trent,  5  Q.  B.  (48  E.  C.  L.  R.)  303. 


OF    WRITTEN   CONTRACTS.  57 

plaintiff  should  serve  the  defendant  therein  at  £150  a 
year,  provided  that  if,  at  the  end  of  the  j^ear,  the  de- 
fendant had  found  that  the  plaintiff  had  done  sufficient 
business  to  justify  him  in  making  up  his  salary  to  .£180, 
he  would  make  him  a  donation  of  £30.  A  general  cus- 
tom in  the  trade  was  proved  that  either  party  might 
determine  the  service  upon  giving  the  other  a  month's 
notice ;  and  the  question  was,  whether  the  terms  of  the 
agreement  were  such  as  to  exclude  the  custom.  The 
Court  clearly  thought  that  there  was  not  anything  in  it 
to  have  that  effect.  Crowder,  J.,  observed  that  the 
agreement  did  not  contain  any'stipulation  as  to  the  time 
of  quitting  the  service,  or  as  to  the  term  of  dismissal. 
If  it  had  contained  such  stipulations,  then,  according  to 
the  authorities,  the  custom  would  have  been  excluded, 
for  the  question  in  all  these  cases  is,  whether  the  inci- 
dent which  it  is  sought  to  import  into  the  contract  is 
consistent  with  the  terms  of  the  written  instrument.  (^) 
For  the  same  reason,  in  a  case  where  it  was  proved 
that  in  the  tobacco  trade  whenever  a  sale  of  tobacco 
takes  place,  and  the  written  contract  of  sale  contains  no 
stipulation  on  the  subject  of  samples,  but  samples  are 
actually  delivered,  a  usage  prevails  to  consider  the 
vendor  as  agreeing  that  the  bulk  shall  correspond  with 
the  sample ;  and  the  question  *in  the  case  was,  r^j:;:  o-i 
whether  the  usage  was  excluded  by  implication ; 
the  Court  of  Exchequer  decided  that  the  usage  might 
be  proved,  annexing  thereby  an  additional  term  to  the 
written  contract  not  inconsistent  with  it.(/)  One  more 
instance  of  a  mercantile  contract  to  which,  although  in 
writing,  a  customary  usage  has  been  annexed,  will 
suffice.     A  bill  of  lading  provided  that  goods  should  be 

{k)  Parker  v.  Ibbetson,  27  L.  J.  (C.  P.)  236. 
[l]  Sayres  v.  Jonas,  2  Ex.  111. 


58  smith's  law  of  contracts. 

delivered  to  the  consignee  or  his  assigns  at  Liverpool, 
he  or  they  paying  freight  for  the  same,  §  of  a  penny 
per  lb.,  with  primage  and  average  accustomed.  The 
shipowner  sued  the  endorsee  of  the  bill  of  lading,  who 
had  accepted  the  goods,  to  recover  the  freight  and  pri- 
mage, when  the  latter  was  allowed  to  prove  a  custom  at 
Liverpool  by  which  he  was  entitled  to  a  deduction  of 
three  months'  discount  from  the  freight.  "  In  all  con- 
tracts" (said  Coleridge,  J.,  delivering  the  judgment  of 
the  Court),  "as  to  the  subject-matter  of  which  known 
usages  prevail,  parties  are  found  to  proceed  upon  the 
tacit  assumption  of  these  usages ;  they  commonly  reduce 
into  writing  the  special  particulars  of  their  agreement, 
but  omit  to  specify  these  known  usages,  which  are  in- 
cluded, however,  as  of  course,  by  mutual  understanding  : 
evidence,  therefore,  of  such  incidents  is  receivable.  The 
contract  in  truth  is  partly  express  and  in  writing,  partly 
implied  or  understood  and  unwritten.  But,  in  these 
r^jr Q-|  cases,  a  ^restriction  is  established  on  the  soundest 
principle,  that  the  evidence  received  must  not 
be  of  a  particular  Avhich  is  repugnant  to,  or  inconsistent 
with,  the  w^ritten  contract.  Merely  that  it  varies  the 
apparent  contract  is  not  enough  to  exclude  the  evidence ; 
for  it  is  impossible  to  add  any  material  incident  to  the 
written  terms  of  a  contract  without  altering  its  effect, 
more  or  less."(m) 

The  following  are  incidents  in  Avhich  the  usage  has 
been  held  inconsistent  with  the  contract: — Where  one 
carried  on  business  as  a  tallow  merchant,  through  an 
agent  who  always  used  his  own  name,  but  was  univer- 
sally known  to  represent  the  merchant,  evidence  of  a 
custom  in  the  tallow  trade  to  reject  on  such  contracts 

(m)  Brown  v.  Byrne,  23  L.  J.  (Q.  B.)  313 ;  3  E.  &  B.  (77  E.  C.  L.  R.) 
703. 


OF    WRITTEN    CONTRACTS.  59 

the  principal,  and  to  look  to  the  broker  alone  for  the 
fulfilment  of  the  contract,  was  held  inadmissible  as  being 
inconsistent  with  it.(n)  And  again,  where  in  a  policy 
of  assurance  it  was  expressed  that  the  insurance  on  the 
ship  should  continue  until  she  was  moored  twenty-four 
hours,  and  on  the  goods  till  safely  landed,  it  was  held 
that  a  usage  that  the  risk  on  the  goods  as  well  as  on  the 
ship  expired  in  twenty-four  hours  was  inadmissible,  (o) 

*Upon  the  same  ground,  where  an  attorney  r-^pn-i 
entered  into  a  written  contract  whereby  he 
agreed  to  take  into  partnership  in  the  business  of  an 
attorney  a  person  who  had  not  at  that  time  been  admit- 
ted, no  time  being  fixed  by  the  writing  for  the  com- 
mencement of  the  partnership,  it  was  decided  that  (no 
time  being  expressly  appointed)  the  partnership  com- 
menced from  the  date  of  the  agreement;  and  that  parol 
evidence  could  not  be  received  to  show  that  the  agree- 
ment was  not  to  take  effect  until  the  intended  partner 
should  be  duly  admitted,  for  such  evidence  would  make 
the  agreement  different  from  that  which  it  purported  to 
be,  namely,  an  agreement  for  a  present  partnership,  (p) 

Moreover,  where  terms  are  used  which  are  known 
and  understood  by  a  particular  class  of  persons  in  a  cer- 
tain special  and  peculiar  sense,  evidence  to  that  effect 
is  admissible  for  the  purpose  of  applying  the  instrument 
to  its  proper  subject-matter  5  and  the  case  seems  to  fall 
within  the  same  consideration  as  if  the  parties,  in 
framing  their  contracts,  had  made  use  of  a  foreign  lan- 
guage, which  the  Courts  are  not  bound  to  understand. 

[n)  Trueman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  589 ;  Magee  v.  At- 
kinson, 2  M.  &  W.  440 ;  Jones  v.  Littledale,  6  A.  &  E.  (33  E.  C.  L.  R.) 
486  ;  see  also  Mollett  v.  Robinson,  L.  R.  5  C.  P.  646,  7  Ibid.  84 ;  39  L.  J. 
(C.  P.)  290,  4  Ibid.  65. 

(o)  Parkinson  v.  Collier,  Park  on  Ins.  47. 

[p]  Williams?;.  Jones,  5  B.  &  C.  (11  E.  C.  L.  R.)  108. 


60  smith's  law  of  contracts. 

Thus,  where  by  a  charter-party,  a  vessel  with  a  cargo 
of  coals  to  Algiers  was  to  be  unloaded  at  a  certain  rate 
per  day,  and  if  detained  longer  the  charterer  was  to 
pay  so  much  per  day  from  the  time  of  the  vessel  being 
r*p-|-]    ready  to  unload  and  '%i  hum  to  deliver^  evidence 

was  admitted  to  show,  that,  in  the  port  of  Algiers, 
these  words  had  acquired  a  peculiar  meaning.  (^)  And 
where  one  of  the  terms  of  a  charter-party  was  that  the 
vessel  should  proceed  to  Newcastle  and  there  be  ready 
"  in  regular  turns  of  loading,"  it  was  decided  that  the 
question  what  was  loading  in  a  reasonable  time  ought 
not  to  be  decided  without  reference  to  the  usage  of  the 
port  in  respect  of  loading,  a  custom  in  this  respect 
having  been  proved  to  exist,  (r)  Upon  this  principle 
evidence  has  been  admitted  to  show  that  in  mercantile 
contracts  the  Gulf  of  Finland  is  considered  as  within 
the  Baltic,  although  the  two  seas  are  considered  sepa- 
rate and  distinct  by  geographers,  (s)  So  evidence  is 
admissible  to  prove  that,  in  similar  contracts,  the  Mau- 
ritius is  treated  as  an  Indian  island,  although  treated  by 
geographers  as  African,  (z^)  Parol  evidence  has  been 
received  to  show  the  meaning  of  the  word  "level"  in  a 
lease  of  coal  mines ;  (w)  that  the  word  London  has  a  col- 
loquial sense  other  than  the  City;(.t)  and  that,  by  the 
usage  of  a  particular  district,  1000,  applied  in  a  lease  to 
r^P2"i    rabbits  *on  the  land,  meant  1200. (j^)     In  like 

manner,  where  an  auctioneer  was  employed  to 

[q)  Robertson  v.  Jackson,  2  C.  B.  (52  E.  C.  L.  R.)  412. 

(r)  Leidman  v.  Schultz,  23  L.  J.  (C.  P.)  17  ;  14  C.  B.  (78  E.  C.  L.  R.) 
38 ;  see  Hudson  v.  Clementson,  25  L.  J.  (C.  P.)  234 ;  18  C.  B.  (86  E.  C. 
L.  R.)213. 

(s)  Udhe  V.  Walters,  3  Camp.  16. 

{t)  Robertson  v.  Money,  Ry.  &  Mood.  75. 

(w)  Clayton  v.  Gregson,  5  A.  &  E.  (31  E.  C.  L.  R.)  302. 

\x)  Mallan  v.  May,  13  M.  &  W.  511. 

{y)  Smith  v.  Wilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  728. 


OF    WRITTEN    CONTRACTS.  62 

sell  land  under  a  written  contract,  that  he  should  be 
paid  1  per  cent,  commission,  but  if  the  estate  were  not 
sold  within  two  months  after  the  day  of  auction,  then 
he  should  be  paid  2  per  cent  only ;  it  was  held  that, 
although  this  time  by  itself  meant  two  months  of  four 
weeks  each,  yet  evidence  of  those  words  being  used  in 
the  auction  trade  in  the  sense  of  calendar  months  was 
admissible,  from  which  the  jury  might  find  that  they 
were  so  used  in  this  contract.  (;?)  Where  a  contract  was 
made  to  sell  mess  pork  of  Scott  &  Co.,  evidence  was 
admitted  to  show  that  in  the  market  it  was  understood 
to  mean  manufactured  by  Scott  &  Co.; (a)  and  where  a 
corn-merchant  abroad  sent  instructions  to  his  corn  factor 
in  London  to  sell  oats  on  his  account,  evidence  was  ad- 
mitted to  show  that,  by  the  custom  of  the  London  corn 
trade,  a  factor  acting  under  such  instructions  was  war- 
ranted in  selling  in  his  own  name.(^)  In  another  in- 
stance, a  memorandum  for  a  wager  on  a  steeple-chase 
described  the  race  as  four  miles  across  a  country,  and 
evidence  was  received  to  explain  that  across  a  country 
meant  that  the  riders  were  to  go  over  all  *obstruc-  rA^aon 
tions,  and  not  to  avail  themselves  of  an  open 
gate.(c)  In  another  case,  an  agreement  in  writing  was 
made  by  an  actress  to  perform  at  defendant's  theatre, 
who  agreed  to  engage  her  for  three  years,  and  to  pay 
her  so  much  a  week.  In  an  action  for  the  salary,  the 
defendant  was  allowed  to  prove  that,  according  to  uni- 
form usage  in  the  theatrical  profession,  the  actress  was 
to  be  paid  during  the  theatrical  season  only — that  is, 

(z)  Simpson  v.  Margitson,  11  Q.  B.  (63  E.  C.  L.  R.)  23. 
(a)  Powell  V.  Horton,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  668. 
{b)  Johnson  v.  Usborne,  11  A.  &  E.  (39  E.  C.  L.  R.)  549  ;  Graves  v. 
Legg,  26  L.  J.  (Ex.)  316  ;  11  Ex.  642. 

(c)  Evans  v.  Pratt,  3  M.  &  G.  (42  E.  C.  L.  R.)  759. 


63  smith's  law  of  contracts. 

while  the  theatre  was  open.(c?)  Upon  the  same  princi- 
ple, where  the  defendant  contracted  by  a  charter-party 
to  load  in  Trinidad  a  full  and  complete  cargo  of  sugar, 
molasses,  or  other  lawful  produce,  and  he  did  load  as 
many  inmclieons  of  sugar  and  molasses  as  the  ship  would 
hold,  he  was  held  to  have  fulfilled  his  contract,  because, 
by  the  custom  of  Trinidad,  a  full  and  complete  cargo  of 
sugar  and  molasses  meant  a  cargo  of  those  goods  packed 
in  puncheons. (e)  So  it  has  been  decided  that  a  usage 
and  custom  that  underwriters  are  not,  under  the  ordi- 
nary form  of  policy,  liable  to  general  average  for  the 
jettison  of  timber  stowed  on  deck,  is  not  inconsistent 
with  the  terms  of  such  policy,  although  those  terms 
have  been  always  held  to  render  the  insurer  ordinarily 
liable  for  general  average.  Such  custom  is  a  reasonable 
r^nA-\  *one,  for  the  goods  so  stowed  are  not  in  the  part 
of  the  ship  where  goods  are  usually  carried,  and 
are  in  more  than  usual  peril.  (/)  Again,  where  mining 
shares  were  sold,  the  written  contract  for  the  sale  of 
which  specified  the  times  of  payment,  but  not  the  time 
of  delivery,  proof  of  a  usage  among  brokers  in  mining 
shares,  that  on  contracts  for  the  sale  and  purchase  of 
such  shares,  the  delivery  of  them  should  take  place  con- 
currently with,  and  at  the  time  agreed  upon  for  pay- 
ment, and  that  the  purchaser  was  not  at  liberty  to  de- 
mand the  delivery  of  them  before  the  time  of  payment, 
was  admitted.  (_</) 

But,  as  said,  by  Lord  Lyndhurst,  C.  B.,  in  Blacket  v. 

[d)  Grant  v.  Maddox,  15  M.  &  W.  737  ;  see  also  Myers  v.  Sari.  30  L. 
J.  (Q.  B.)  9. 

(e)  Cuthbertzj.  Cummings,  (Ex.  Ch.)  24  L.  J.  (Ex.)  310;  11  Ex.  405. 
(/)  Miller  V.  Titherington,  30  L.J.  (Ex.)  217  ;  6  H.  &  N.  278  ;  affirmed 

in  Ex.  Ch.  31  L.J.  (Ex.)"  363  ;  7  H.  &  N.  954. 

{g)  Field  v.  Lelean,  30  L.  J.  (Ex.)  168,  in  Ex.  CIi.  ;  see  Spartali  v. 
Benecke,  10  C.  B.  (70  E.  C.  L.  R.)  212. 


OF    WRITTEN    CONTRACTS.  64 

Royal  Exchange  Insurance  Cpmpany,  although  "  usage 
may  be  admissible   to   explain  -sThat  is  doubtful,  it  is 
never  admitted  to  contradict  what  is  plain."     In  this 
case,  a  policy  of  insurance,  in  the   common  form  upon 
the  ship — that  is,  "  the  body,  tackle,  apparel,  ordnance, 
munition,   boat,  and  other  furniture  of  the   ship,"  was 
sought  to  be  qualified  to  the  exclusion  of  hoats  slung  on 
the  ships  quarter,  by  proving  a  usage  at  Lloyd's  to  that 
"effect.     It  is  obvious  that  this  usage   ought  to  be  re- 
jected, as  it  was  not  to  explain  the  policy,  *or  to    p.^,.-, 
introduce  matter  upon  which  it  was  silent,  but    '-       ^ 
was  in  direct  variance  with  the  words  of  the  policy,  and 
in  plain  opposition  to  the  language  it  used.(/i)      A  con- 
tract was  made  with  a  shipowner,  by  a  broker,  to  have 
a  full  cargo  for  the  ship,  the  rates  of  freight  for  which 
would  average  405.  a  ton,  and  at  least  nine  cabin  pas- 
sengers, passage  money  to  average  £11k     The  contract 
was  fulfilled  as  to  the  cabin  passengers,  but  the  average 
rate  of  frieght  for  the  goods  put  on  board  was  only  325. 
a  ton;  but  several  steerage  passengers   were  shipped 
whose  passage  money  made  up  the  average  earnings  of 
the  ship  to  40s.  a  ton.     Evidence  that  the  w^ords  cargo 
and  freight  in  the  voyage  the  ship  was  engaged  in  would 
include  steerage  passengers,  and  the  net  profit  arising 
from  their  passage  money,  was  rejected. (z)     The  object 
of  extrinsic  evidence  in  tiiese  cases  is  to  explain  terms 
and  modes  of  expression  which,  although  belonging  to 
the  English  language,   are   not  intelligible   to  all  who 

[h)  2  C.  &  J.  244;  see  also  Myers  v.  Sari,  30  L.  J.  (Q.  B.)  9;  Miller 
V.  Titherington,  30  L.  J.  (Ex.)  217  ;  Ireland  v.  Livingstone,  L.  R.  5  Q. 
B.  (Ex.  Ch.)  516,  reversing  L.  R.  2  Q.  B.  99,  on  the  ground  that  the 
contract  was  so  unambiguous  that  evidence  of  custom 'could  not  affect 
the  construction  to  be  put  upon  it :  s.  c.  36  L.  J.  (Q.  B.)  50,  39  Ibid. 
284. 

\i)  Lewis  V.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  729. 


65  smith's  law  of  contracts. 

understand  it,  but  have  acquired,  by  usage,  a  definite 
sense  and  meaning  known  amongst  a  particular  class  of 
r*pp1    persons,  which  can  be  well  ^ascertained  by  means 

of  the  testimony  of  those  who  are  conversant 
with  the  peculiar  use  of  those  terms.  The  witnesses 
for  this  purpose  may  be  considered  as  the  sworn  inter- 
preters of  the  language  of  commerce,  art,  or  the  place  in 
which  the  contract  is  written.  But  beyond  this  the 
principle  does  not  extend.  If  plain  and  ordinary  terms 
and  expressions,  to  which  an  unequivocal  meaning 
belongs,  which  is  intelligible  to  all,  are  used,  that  plain 
sense  and  meaning  ought  not  to  be  altered  by  mercantile 
understanding  and  usage.  To  allow  such  alteration 
would  be  to  make  it  legal  to  say  one  thing  and  mean 
another,  and  would  render  a  writing  useless.  Therefore, 
parol  evidence  cannot  be  given  to  explain  the  meaning 
of  the  words  "more  or  less"  in  a  mercantile  contract. (^) 
And  where  a  man  contracts  in  his  own  name,  evidence 
of  a  custom  in  Liverpool  to  send  in  broker's  notes,  with- 
out disclosing  the  principal's  name,  cannot  be  received, 
in  order  to  excuse  the  contractor  from  lijability  as  having 
acted  as  a  broker  merely ;  and  Alderson,  B.,  said  the 
custom  offered  to  be  proved  was  a  custom  to  violate  the 
common  law  of  England.  (/) 

It  must  be  borne  in   mind,  in  the  application  of  all 
r^orj-i    these  rules,  that  evidetice  of  words  being  used  in 

%  certain  sense,  or  that  certain  incidents  are  an- 
nexed by  custom  in  certain  places  and  amongst  certain 
classes  of  persons,  does  not  raise  a  conclusion  of  law 
that  the  contracting  parties  used  the  terms  in  those 
senses,  or  that  the  incident  must  necessarily  be  annexed 

(A:)  Cross  V.  Eglin,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  106  ;  see  Moore  v. 
Campbell,  10  Ex.  323  ;  23  L.  J.  (Ex.)  310. 

(1)  Magee  v.  Atkinson,  2  M.  &  W.  440  ;  Jones  v.  Littledale,  6  A.  &  E. 
(33  E.  C.  L.  R.)  486. 


OF    WRITTEN    CONTRACTS.  67 

but  is  only  evidence  from  which  a  jury  may*  draw  the 
conckision  that  such  was  the  meaning  of  the  parties,  or 
such  the  custom  or  usage,  (m)  It  must  also  be  borne  in 
mind  that  although,  in  the  classes  of  cases  mentioned, 
evidence  of  usage  may  be  received  to  explain  the  writ- 
ten contract,  yet,  when  the  jury  have  decided  on  the 
meaning  of  the  term,  it  is  not  for  them  but  for  the 
Court  to  put  a  construction  upon  the  entire  contract  or 
document,  [n] 

It  must  also  be  observed,  before  quitting  this  subject, 
although  it  may  be  deduced  from  the  very  terms  of  the 
rules  of  which  we  have  been  treating,  that  if  the  con- 
tract itself  be  unusual,  evidence  of  the  usage  and  cus- 
tom of  the  trade  in  the  course  of  which  the  unusual 
contract  arose,  ought  not  to  be  received  to  explain  it.(o) 

It  seems  hardly  necessary  to  say  that  before  the 
application  of  these  rules  arises,  the  writing  to  which 
they  are  to  be  applied  must  really  be  a  complete  ppo-i 
^contract.  But,  in  fact,  considerable  nicety  of 
judgment  has  been  found  requisite  upon  the  question 
whether  in  fact  such  contract  does  exist.  Thus,  where 
in  a  printed  catalogue  of  articles  to  be  sold  by  auction, 
a  dressing  case  was  described  as  having  silver  fittings, 
but  at  the  sale  the  auctioneer  stated,  in  the  defendant's 
hearing,  that  the  catalogue  was  incorrect  in  describing 
the  fittings  as  silver,  and  it  would  be  sold  as  having 
plated  fittings,  but  no  alteration  was  made  in  the  cata- 
logue :  in  an  action  for  the  price,  it  was  proposed  to 
prove  what  the  auctioneer  had  said,  but  this  was  ob- 

(to)  Clayton  i-.  Gregson,  5  A.  &  E.  (31  E.  C.  L.  R.)  302;  Smith  v. 
Wilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  728. 

{n)  Hutchinson  v.  Bowker,  5  M.  &  W.  535;  Neilson  t'.' Harford,  8  M. 
,&  W.  806. 

(o)  Lewis  V.  Marshall,  7  M.   &  G.  (49  E.  C.  L.  R.)  729 ;  Baxter  v. 
Nurse,  0  M.  &  G.  (46  E.  C.  L.  R.)  935. 
6 


68  smith's  law  of  contracts. 

jected  to,  as  attempting  to  vary  by  parol  a  written  con- 
tract. But  the  Court  considered  the  evidence  to  be 
unobjectionable,  as  in  fact  the  auctioneer  declined  to  sell 
by  the  printed  particulars,  and  the  contract  of  sale  was 
altogether  ovii[.{p)  And  again,  where  goods  were 
ordered  by  letter  which  did  not  mention  any  time  for 
payment,  and  the  goods  were  accordingly  delivered  with 
an  invoice  equally  silent  upon  that  point,  it  was  decided 
that  parol  evidence  might  be  given  that  it  had  been 
stipulated  by  the  parties  that  certain  credit  should  be 
given  which  was  not  expired.  It  will  be  observed  that 
in  this  instance  the  letter  and  the  invoice  together  did 
not  form  a  contract,  which,  indeed,  did  not  exist  until 
the  goods  were  delivered,  and  consequently  no  rule  was 
violated  in  receiving  evidence  that  credit  had  been 
ppq-i  *stipulated  for.  "The  documents  in  question," 
said  Alderson,  B.,  ''are  not  a  contract,  but  are 
writings  out  of  which,  with  other  things,  a  contract  is 
to  be  made.  The  question  then  is,  whether  the  defend- 
ant has  not  a  right  to  adduce  evidence  not  to  contradict 
the  written  instruments,  but  to  show  the  real  contract 
of  which  the  paper  contains  only  one  of  the  terms.  In 
order  to  do  that,  the  defendant  must  resort  to  the  pre- 
vious conversation."  ((7)  This  rule  has  been  well  illus- 
trated by  a  more  recent  case,  in  which  a  tradesman 
having  in  an  invoice  described  himself  as  the  seller  of 
certain  goods,  it  was  attempted  to  sue  him  for  a  defi- 
cient delivery  and  improper  packing  of  the  goods,  in 
consequence  of  which  they  became  deteriorated  on  a 
voyage.  He  was,  it  was  strongly  argued,  estopped  by 
his  invoice  from  saying  that  he  was  not  the  seller  of  the 

{X>)  Eden  v.  Blake,  13  M.  &  W.  614. 

(?)  Lockett  w.  Nicklin,  2  Ex.  93;  Stones  v.  Dowler,  29  L.  J.   (Ex.) 
122  ;  see  Jeffrey  v.  Walton,  1  Stark.  (2  E.  C.  L.  R.)  267. 


THE    STATUTE    OF    FRAUDS.  69 

goods.  But  he  was  allowed  to  prove  that  the  goods 
were  bought  by  the  plaintiffs  from  another  person,  and 
were  included  by  the  defendant  in  his  invoice  at  the 
plaintiff's  recjuest,  and  for  his  convenience,  for  the  pur- 
pose of  enabling  him  to  pay  the  price  with  greater 
facility.  "No  doubt,"  said  the  Chief  Baron,  "an  invoice 
is  in  some  cases  very  strong,  and  the  strongest  possible 
evidence  of  a  contract.  But  here  the  actual  contract 
was  made  before  the  invoice  was  contemplated,  and 
therefore  it  would  not  alter  the  original  terms  of  the 
contract.  In  *many  cases  it  may  be  part  of  the  pH^m 
contract,  but  here  the  actual  contract  was  a 
verbal  one."(r) 

The  other  point  to  which  I  alluded,  as  constituting 
an  important  practical  distinction  between  simple  con- 
tracts by  mere  words  and  simple  contracts  in  writing(5) 
:is,  that  there  are  several  matters,  which,  although  they 
lare  capable  of  becoming  the  subjects  of  Smjjle  Contract, 
•cannot,  nevertheless,  be  contracted  for  without  writing, 
so  as  to  give  either  party  a  right  of  action  on  such  con- 
tract. 

By  far  the  most  important  class  of  contracts  subject 
to  this  observation  are  those  falling  within  the  enact- 
ments of  the  Statute  of  Frauds.  And  these  are  of  such 
very  constant  recurrence  in  practice,  that  it  will  be  right 
to  devote  some  time  to  their  consideration. 

The  Statute  of  Frauds  was  passed  in  the  twenty- 
ninth  year  of  the  reign  of  Charles  II.,  and  is  the  3d 
cap.  of  the  statute-book  of  that  year.  It  is  said  to  have 
been  the  joint  production  of  Sir  Matthew  Hale,  Lord 
Keeper  Guilford,  and  Sir  Leoline  Jenkins,  an  eminent 

(r)  HoldiniT  v.  Elliott,  29  L.  J.  (Ex.)  134;  see  also  Malpas  v.  London 
&  S.  W.  Rail.  Co.,  L.  R.  1  C.  P.  336 :  35  L.  J.  (C.  P.)  166  ;  commenting 
on  Jeffery  v.  Walton,  1  Stark.  (2  E.  C.  L.  R.)  267. 

[s)  See  p.  39. 


70  smith's  law  of  contracts. 

civilian.  The  great  Lord  Nottingham  used  to  say  of  it 
"M«^  every  line  was  ivortli  a  suhsidi/"'^  and  it  might  now 
be  said  with  truth,  that  every  line  has  cost  a  subsidy, 
P^r^-,-]  for  it  is  universally  admitted  that  no  ^enactment 
of  any  legislature  ever  became  the  subject  of  so 
much  litigation.  Every  line,  and  almost  every  word  of 
it  has  been  the  subject  of  anxious  discussion,  resulting 
from  the  circumstance  that  the  matters  which  its  provi- 
sions regulate  are  those  which  are  of  everyday  occur- 
rence in  the  course  of  our  transactions  with  one  another.^ 
The  chief  object  of  passing  the  statute  was,  to  pre- 
vent the  facility  to  frauds,  and  the  temptation  to  per- 
jury, held  out  by  the  enforcement  of  obligations  depend- 
ing for  their  evidence  upon  the  unassisted  memory  of 
witnesses.  How  great  this  temptation  and  facility  in 
their  own  nature  are,  is  obvious ;  and,  accordingly,  the 
statute,  in  the  1st  section,  declares  its  own  enactment 
to  be  "  for  the  prevention  of  many  fraudulent  practices, 
which    are    commonly   endeavored    to   be   upheld   by 

'  But  in  Lord  Nottingham's  MS.  report  of  the  case  of  Ash  v.  Abdy 
(1678),  printed  in  3  Swanst.  644,  he  remarks  :  "  And  I  said  that  I  had 
some  reason  to  know  the  meaning  of  this  law,  for  it  had  its  first  rise 
from  me,  who  brought  the  bill  into  the  Lords'  House,  though  it  after- 
wards received  some  additions  and  improvements  from  the  judges  and 
civilians."  In  Gilbert's  Rep.  in  Eq.  171,  "  Sir  Matthew  Hale  and  Sir 
Lionel  Jenkins,  who  prepared  this  statute,"  are  referred  to,  but  Lord 
Mansfield,  in  "Windham  v.  Chetwynd,  1  Burr.  418,  doubted  Lord  Hale's 
authorship  of  the  statute,  as  "it  was  not  passed  till  after  his  death,  and 
was  brought  in,  in  the  common  way,  and  not  upon  any  reference  to  the 
judges  :"  and  Lord  Campbell,  in  his  Lives  of  the  Chancellors,  refers  to 
the  statute  as  desei-ving  more  praise  for  its  general  design,  than  for  the 
manner  in  which  it  was  executed  :  vol.  3,  p.  418. — r. 

-  The  defence  of  the  Statute  of  Frauds  is  personal,  and  can  only  be 
relied  on  by  the  parties  or  their  privies  :  Chicago  Dock  Co.  v.  Kinzie,  49 
111.  289.  Contracts  within  the  Statute  of  Frauds  are  not  illegal,  unless 
put  in  writing ;  but  only  not  capable  of  being  enforced — an  immunity 
which  the  defendant  on  the  trial  may  waive :  Montgomery  v.  Edwards, 
46  Verm.  151. 


THE    STATUTE    OF    FRAUDS.  71 

perjury  and  subornation  of  jDerjuiy ;"  and  then  it 
goes  on  to  provide  for  various  cases,  in  which  it  was 
apprehended  that  such  practices  were  most  likely  to 
occur.  The  1st  of  the  twenty-five  sections  of  which  it 
consists  is  levelled  at  parol  conveyances  of  land,  and 
contains  the  celebrated  enactment,  of  which  you  have 
doubtless  often  heard,  that  they  shall  create  estates  at 
will  only.  The  2d  section  excepts  from  this  enactment 
the  case  of  leases  not  exceeding  three  years  from  the 
making  thereof,  and  reserving  two-thirds  of  the  annual 
value  as  rent. 

The  3d  section  forbids  parol  assignments,  grants,  or 
surrenders ;  the  oth  is  levelled  at  unattested  r-.i-.^^-i 
*devises ;  the  6th  at  secret  revocations  of  de- 
vises; the  7th  Sit jycirol  declarations  of  trust;  the  19th 
and  20th  against  mmciipative  wills  of  personalty  ;  and 
the  21st  against  verbal  alterations  in  written  wills. 

But  the  two  sections  which  mainly  affect  contracts^ 
and  which,  consequently,  are  chiefly  important  to  the 
subject  of  this  Lecture,  are  the  4th  and  17th. 

The  4th  section  enacts — "  That  no  action  shall  be 
brought  to  charge  any  executor  or  administrator  upon 
any  special  promise  to  answer  damages  out  of  his  own 
estate ;  or  whereby  to  charge  the  defendant  upon  any 
special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person ;  or  to  charge  any  person 
upon  any  agreement  made  upon  consideration  of  mar- 
riage ;  or  upon  any  contract  or  sale  of  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them; 
or  upon  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof; 
unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged  there- 


72  smith's  law  of  contracts. 

with,  or  some  other  person  thereunto  by  him  lawfully 
authorized," 

The  contracts  provided  for  by  this  section  are,  there- 
fore, as  you  will  have  observed — 

1st.  Promises  by  an  executor  or  administrator  to  answer 
damages  out  of  his  own  estate. 

r*7^1        *^^'  P^^omises  to  answer  for  the  deht.  default, 
or  miscarriage  of  another  person. 

3d.  Agreements  made  in  consideration  of  marriage. 

4th.  Contracts  or  sales  of  lands,  tenements,  or  heredita- 
ments, or  any  interest  in  or  concerning  them. 

5th.  Agreements  not  to  he  feyformed  tvithin  the  space 
of  a  year  after  the  making  thereof. 

The  latter  part  of  the  section  applies  equally  to  each 
of  these  five  sorts  of  contracts,  which  are  equally  pro- 
hibited from  being  made  the  subject-matter  of  action, 
unless  the  agreement  or  some  note  or  memorandum  of  it 
shall  be  in  writing,  signed  by  the  party  to  be  charged 
or  some  person  thereunto  by  him  lawfully  authorized. 

Now,  it  has  been  decided — and  the  decision  you  will 
observe  was(2f)  equally  applicable  to  each  of  the  five 
descriptions  of  contract — that  in  consequence  of  the  in- 
troduction of  the  word  "  agreement^''  the  consideration  as 
well  as  the  promise  must  appear  in  writing.  That  was 
settled  by  the  well-known  cases  of  Wain  v.  Warlters,(««) 
Saunders  v.  Wakefield,  (:?;)  and  Jenkins  v.  Reynolds,  (j^) 
For,  the  word  agreement,  comprehending  what  is  to  be 
done  on  both  sides,  comprehends  of  course  the  considera- 
tion for  the  promise  as  well  as  the  promise  itself.  The 
r*741  j^^^^S'^i^^i^t  of  Lord  ^-EUenborough  in  Wain  v. 
Warlters,  very  clearly  explains  the  reasons  upon 
which  this  doctrine  is  founded. 

{t)  See  post,  p.  75.  (x)  4  B.  &  Aid.  (6  E.  C.  L.  K.)  595. 

(w)  5  East  10.  (y)  3  B.  &  B.  (7  E.  C.  L.  R.)  14. 


THE    STATUTE    OF    FRAUDS.  74 

"  The  clause  in  question  in  the  Statute  of  Frauds," 
says  his  Lordship,  "  has  the  word  agreement  {^  unless  the 
agreement  upon  ivhich  the  action  is  brought,  or  some  memo- 
randum or  note  thereof,  shall  be  in  tvriting,'  &c.) ;  and  the 
question  is.  Whether  that  word  is  to  be  understood  in 
the  loose  incorrect  sense  in  which  it  may  sometimes  be 
used,  as  synonymous  to  promise  or  undertaking,  or  in 
its  more  proper  and  correct  sense,  as  signifying  a  mutual 
"contract,  on  consideration,  between  two  or  more  parties  ? 
The  latter  appears  to  me  to  be  the  legal  construction  of 
the  word,  to  which  we  are  bound  to  give  its  proper 
effect:  the  more  so  when  it  is- considered  by  whom  that 
statute  is  said  to  have  been  drawn,  by  Lord  Hale,  one 
of  the  greatest  judges  who  ever  sat  in  Westminster 
Hall,  who  WMS  as  competent  to  express  as  he  was  able 
to  conceive  the  provisions  best  culculated  for  carrying 
into  effect  the  purposes  of  that  law.  The  person  to  be 
charged  for  the  debt  of  another  is  to  be  charged  in  the 
form  of  the  proceeding  against  him,  upon  his  speeial  pro- 
mise; but  without  a  legal  consider atio^i  to  sustain  it,  that 
promise  would  be  nudum  pactum  as  to  him.  The  statute 
never  meant  to  enforce  any  promise  which  was  before 
invalid,  merely  because  it  was  put  in  writing.  The 
obligatory  part  is  indeed  the  promise,  which  will  riityc-i 
^account  for  the  word  promise  being  used  in  the 
first  part  of  the  clause  ;  but  still,  in  order  to  charge  the 
party  making  it,  the  statute  proceeds  to  require  that  the 
agreement  (by  which  must  be  understood  the  agreement  in 
respect  of  which  the  promise  was  made)  must  be  reduced 
into  writing.  And  indeed  it  seems  necessary  for  effec- 
tuating the  object  of  the  statute,  that  the  consideration 
should  be  set  down  in  writing  as  well  as  the  promise ; 
for,  otherwise,  the  consideration  might  be  illegal,  or  the 
promise  might  have  been  made  upon  a  condition  prece- 


(0  SMITHS   LAW   OF    CONTRACTS. 

dent,  which  the  party  charged  may  not  afterwards  be 
able  to  prove,  the  omission  of  which  would  materially 
vary  the  promise,  by  turning  that  into  an  absolute  pro- 
mise which  was  only  a  conditional  one  ;  and  then  it 
would  rest  altogether  on  the  conscience  of  the  witness 
to  assign  another  consideration  in  the  one  case,  or  to 
drop  the  condition  in  the  other,  and  thus  to  introduce 
the  very  frauds  and  perjuries  which  it  was  the  object  of 
the  Act  to  exclude,  by  requiring  that  the  agreement 
should  be  reduced  into  writing,  by  which  the  considera- 
tion as  well  as  the  promise  would  be  rendered  certain."^ 

^  Although  Main  v.  Warlters  has  been  sometimes  doubted  in  Eng- 
land (Ex  parte  Minet,  14  Ves.  190;  Ex  parte  Gardom,  15  Ibid.  286), 
yet  its  authority  has  long  been  there  considered  as  unquestioned : 
Saunders  v.  Wakefield  ;  Jenkins  v.  Reynolds,  supra  ;  Morley  v.  Broth- 
by,  8  Bing.  (11  E.  C.  L.  R.j  107;  Newbury  «.  Armstrong,  6  Ibid.  (19 
E.  C.  L.  R.)  201 ;  Raikes  v.  Todd,  8  Ad.  &  Ell.  (35  E.  C.  L.  R.)  448 ; 
Semple  v.  Pink,  1  Exch.  74;  Price  v.  Richardson,  15  Mees.  &  Wels. 
539  ;  Bewley  v.  Whitford,  1  Hays  (Irish  Exch.)  356.  In  this  country 
its  authority  has  been  acknowledged  in  New  Hampshire,  New  York, 
Maryland,  Georgia,  and  perhaps  New  Jersey  :  Neelson  v.  Sandborne,  2 
N.  H.  414;  Sears  tJ.  Brink,  3  Johns.  210;  Elliot  v.  Geisse,  7  Harr.  & 
John.  457 ;  Wyman  v.  Gray,  Ibid.  409 ;  Henderson  v.  Johnson,  6  Ga. 
390;  Buckleys.  Bearslee,  2  South.  570  (though  see  Lea  v.  Lea,  Spencer 
337) ;  but  in  most  of  the  States  (in  some  of  which  the  word  promise  is 
substituted  for  or  introduced  with  the  word  agreement,  see  Taylor  o. 
Ross  ;  Violet  v.  Patten,  infra)^  it  is  held,  in  opposition  to  Wain  v.  Warl- 
ters, that  the  consideration  need  not  appear  from  the  instrument,  but 
may  be  shown  by  parol:  Packard  v.  Richardson,  17  Mass.  122,  where  is 
an  elaborate  opinion  by  Parker,  C.  J.  ;  Bean  v.  Burbank,  16  Me.  460  ; 
Cummings  v.  Dennett,  26  Ibid.  397;  Gillighan  v.  Boardman,  29' Ibid, 
79 ;  Sage  v.  Wilcox,  6  Conn.  81 ;  Smith  v.  Ide,  3  Verm.  290 ;  Fyler  v. 
Givens,  Ryley's  Law  Cas.  (S.  C.)  56  (in  effect  overruling  Stevens  v. 
Winn,  2  N.  &  M.  372,  note  a) ;  Reed  v.  Evan,  17  Ohio  128  ;  Pearce  v. 
Wren,  4  Sm.  &  Marsh..  91 ;  Taylor  v.  Ross,  3  Yerg.  330  ;  Violet  v.  Pat- 
ten, 5  Cranch  142.  The  Revised  Statutes  of  New  York,  in  re-enacting 
the  fourth  section  of  the  Statute  of  Frauds,  altered  it  by  requiring  that 
the  agreement  should  itself  express  the  consideration,  and  this  was  at 
first  held  to  require  that  the  consideration  should  be  expressed  in  terms, 
and  not  by  implication,  in  the  instrument  itself,  and  without  aid  from 
reference  to  any  other  :  Smith  v.  Ives,  15  W^end.  182  ;  Packer  i\  Wilson, 


THE    STATUTE   OF   FRAUDS.  75 

The  point,  however,  actually  decided  in  Wain  v.  Warl- 
ters,  is  no  longer  law  as  to  the  particular  description  of 
contracts  to  which  that  case  relates  ;  for  now  by  stat. 
19  &  20  Vict.  c.  97  (Mercantile  Law  Amendment  Act, 
1856),  s.  3,  if  the  special  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another  be  in  writing 

Ibid.  343;  Newcomb  v.  Clark,  1  Denio  226;  Bennett  v.  Pratt,  4  Ibid. 
275.  But  later  cases  have  relaxed  this  rigidness  of  construction,  and  it 
seems  now  settled  that  it  is  sufficient  if  the  consideration,  expressed  with 
reasonable  certainty,  appear  in  writing  in  any  form  :  Staats  v.  Howlett, 
4  Denio  359  :  Union  Bank  v.  Costen,  3  Coms.  203.  The  fourth  section 
of  the  Statute  of  Frauds  never  was  re-enacted  in  Pennsylvania.  "Wain 
V.  Warlters  forms  one  of  the  leading  cases  compiled  by  Mr.  Smith,  and 
the  student  may  be  profitably  referred  to  the  notes  both  of  himself  and 
of  the  American  editor  upon  it :  2  Lead.  Cas.  245.  It  should  be  noted, 
that  although  the  authority  of  Wain  v.  Warlters  requires  that  the  con- 
sideration should  appear  in  writing,  yet  it  is  not  necessary  that  the  de- 
claration should  set  forth  every  circumstance  sufficient  to  take  the  case 
out  of  the  statute  ;  for  the  consideration  might,  for  example,  appear  from 
the  tenor  and  result  of  a  long  train  of  correspondence,  the  inference  of 
which  should  be  for  the  jury,  and  if  .these  letters  were  necessarily  to  be 
set  forth,  and  the  inference  to  be  deduced  by  the  pleader,  great  difficul- 
ties would  be  imposed  on  plaintiiFs  who  had  to  make  out  a  case  not 
within  the  statute,  if  an  omission  of  any  one  circumstance  necessary  to 
take  it  out  of  the  statute  might  be  pleaded  in  bar:  Lilly  w.  Hewitt,  11 
Price  501  ;  Etting  v,  Vanderlyn,  4  Johns.  237,  and  see  infra,  note  (6) 
to  p.  40. — B. 

The  4th  sect,  of  the  Statute  of  Frauds  has  been,  in  part,  re-enacted  in 
Pennsylvania  since  the  above  note  was  written.  Act  26th  April  1855. 
Promises  by  executors  or  administrators  to  be  answerable  from  their  own 
estates,  and  undertakings  for  the  debt  of  third  persons  are  required  to 
be  in  writing :  Act  22d  April  1856,  as  to  contracts  for  the  sale  of 
realty.  See  Paul  v.  Stackhouse,  38  Penn.^St.  302  ;  Shoemaker  v.  King, 
40  Ibid.  107.  The  consideration  of  a  written  agreement  to  answer  for 
the  debt  of  another,  need  not  be  expressed  in  the  writing,  but  may  bo 
proved  by  other  evidence :  Shively  v.  Black,  45  Ibid.  345  :  Jack  v.  Mor- 
rison, 48  Ibid.  113  ;  Steadman  v.  Guthrie,  4  Met.  (Ky.)  147  ;  Shively  v. 
Black,  45  Penn.  St.  345  ;  Howard  v.  Holbrook,  9  Bosw.  237  ;  Dyer  v. 
Gibson,  16  Wis.  557  ;  Hiatt  v.  Hiatt,  28  Ind.  53 ;  Britton  v.  Angler,  48 
N.  H.  420.  Endorsing  name  on  a  note  is  not  a  sufficient  memorandum 
to  support  a  contract  of  guaranty  :  Jack  v.  Morrison,  48  Penn.  St.  113  ; 
Van  Doren  v.  Tjadder,  1  Nev.  380 ;  Underwood  v.  Ilossack,  38  111.  208. 


76  smith's  law  of  contracts. 

p^-r-p-i    duly  signed,  *it  is  not  necessary  that  the  consid- 
eration should  appear  in  the  Avriting  also.(^) 

The  rule,  however,  laid  down  in  the  above  case  ap- 
plies to  the  other  four  descriptions  of  contract.  There- 
fore, where  a  contract  was  made  in  writing  between  a 
bookseller  and  an  author,  which  evidently  was  to  endure 
for  more  than  a  year,  and  which  contained  stipulations 
to  be  performed  by  the  bookseller,  but  none  to  be  per- 
formed on  the  part  of  the  author,  either  express  or 
which  could  be  made  out  by  necessary  implication ;  it 
w^as  decided  that  an  action  could  not  be  supported  upon 
this  contract  for  want  of  any  consideration  appearing 
upon  its  face.(«) 

But  this  consideration  need  not  appear  in  express 
terms;  it  is  sufficient,  as  will  hereafter  appear,  that 
any  person  of  ordinary  capacity  must  infer  from  the 
perusal  of  the  memorandum  or  note  that  such  and  no 
other  was  the  consideration  upon  which  the  undertaking 
was  given.  (^)  It  must  appear  in  express  terms,  or  by 
necessary  implication,  (c) 

Th-e  same  reasoning  as  that  employed  by  Lord  Ellen- 
borough  in  Wain  v.  Warlters,  clearly  shows  that  all  the 
terms  of  the  agreement,  as  well  as  the  consideration, 
must  be  expressed  in  the  memorandum, 
p---,  *Thus  an  auctioneer's  receipt  given  for  the 
deposit  money  on  a  sale  is  insufficient  to  j)rove 
the  agreement  of  sale  if  it  does  not  mention  the  price,  (c?) 
An  agreement  for  a  lease  not  specifying  a  definite  term, 

(2;)  See  2^ost,  "Guaranty." 

(ff)  Sweet  V.  Lee,  3  M.  &  G.  452. 

(6)  Per  Tindal,  C.  J.,  Hawes  v.  Armstrong,  1  Bing  N.  C.  (27  E.  C.  L. 
R.)  765. 

(c)  Per  Parke,  B.,  Jarvis  v.  Wilkins,  7  M.  &  W.  412. 

{d)  Blagdon  v.  Bradbear,  12  Ves.  466  ;  Elmore  v.  Kingscote,  5  B.  &  C. 
(11  E.  C.  L.  R.)  583 ;  Goodman  v.  Griffiths,  26  L.  J.  (Ex.)  145 ;  1  H.  & 
N.  574. 


THE    STATUTE    OF    FRAUDS.  77 

does  not  satisfy  the  requirement  of  the  statute,  (e)  Thus 
a  memorandum  in  the  following  words  is  insufficient  as. 
such  an  agreement: — "August  11,  1866.  Received  of 
D.  the  sum  of  £10  as  part  purchase-money  of  £390,  of 
4  cottages,  situated  23,  24,  28,  and  29,  W.  Street  B., 
ground-rent  £3  each,  purchase  to  be  completed  within 
one  month  from  this  date,  the  lease  and  counterpart  to 
be  paid  for  by  D.,  and  to  be  £5,  exclusive  of  stamps. — 
J.  E."  It  will  be  observed  that  this  memorandum  de- 
fines the  property,  the  price,  and  the  parties ;  but 
though  it  is  obvious  that  a  lease  is  intended  to  be  con- 
veyed, yet  the  duration  of  that  lease  is  not  expressed.  (/) 
So  if  the  names  of  both  buyer  and  seller  are  not  men- 
tioned in  the  agreement  it  is  insufficient.  (^)  A  late 
case  upon  the  subject  is  very  instructive.  (7^)  There  a 
guaranty  signed  by  the  defendant  was  in  these  words — 
*"  April  27,  1857.  Sir,  I  beg  to  inform  you  that  r^.>jo-] 
I  shall  see  you  paid  to  the  sum  of  £800  for  the 
ensuing  building  which  you  undertake  to  build  for 
Messrs.  Thomas  and  Owens,  of  Cap  Coch.  Thomas 
Lake."  The  defendant  had  delivered  this  to  one  John 
Thomas,  intending  it  to  be  given  to  Thomas  Jones,  who 
was  in  treaty  to  build  houses  for  Thomas  and  Owens, 
but  Jones  refusing  to  build  them,  they  agreed  with 
plaintiff  to  build  them,  and  gave  him  the  guaranty.  Of 
this  the  defendant  was  ignorant,  but  he  afterwards  as- 
sented to  the  plaintiff  having  the  guaranty.  It  was 
held  that  an  action  could  not  be  brought  upon  the 
guaranty,  as  the  plaintiff's  name  did  not  appear  in  it. 

(e)  Clenan  v.  Cooke,  1  Sch.  &  Lefr.  22  ;  Fitzmaurice  v.  Baf^ley,  Ex.  Ch., 
27  L.  J.  (Q.  B.)  143. 

(/)  Dolling  V.  Evans,  36  L.  J.  (Ch.)  474. 

{g)  Boyce  v.  Green,  Batty  608  ;  Warner  v.  Willington,  25  L.  J.  (Ch.) 
662;  3  Drew.  523  ;  Williams  v.  Byrnes,  1  Moo.  P.  C,  N.S.  154. 

{h)  Williams  v.  Lake,  29  L.  J.  (Q.  B.)  1. 


78  smith's  law  of  contracts. 

"  The  objection,"  said  Cockburn,  C,  J.,  "  that  there  was 
no  agreement  or  memorandum,  or  note  thereof  within 
the  Statute  of  Frauds,  must  prevail,  on  the  simple 
ground  that  in  order  that  any  agreement  or  memoran- 
dum should  be  sufficient,  it  is  absolutely  necessary  that 
the  names  of  the  parties  to  the  agreement  should  ap- 
pear on  its  face.  It  is  said  that  the  terms  are  satisfied 
if  the  note  of  the  agreement  contains  a  proposal  which 
is  acceded  to  by  words.  But  I  cannot  concur  in  that 
way  of  putting  it ;  the  only  difference  between  an  'agree- 
ment' and  the  'note'  of  an  agreement  is,  that  in  the  one 
instance  a  formal  agreement  is  meant,  and  in  the  other 
something  not  so  particular  in  form  and  technical  accu- 
racy, but  still  containing  the  essentials  of  the  agreement. 
p:jj«Q-]  The  essentials  of  the  agreement  must  be  stated, 
'''that  is  to  say,  the  subject-matter  of  it,  the  ex- 
tent of  the  liability  contracted  thereby,  if  any,  and  the 
names  of  both  parties  to  it :  and,  I  think,  not  only  is 
that  the  fair  construction  to  be  put  upon  the  statute, 
but  when  we  look  at  the  mischief  intended  to  be  pre- 
vented, it  is  clear  that  the  writing  which  constitutes  a 
liability  on  one  side,  without  stating  the  name  of  the 
other  party  to  whom  it  was  given,  would  lead  to  the 
very  thing  which  the  statute  was  intended  to  prevent, 
namely,  fraud.  There  might  have  been  an  agreement 
for  building  another  set  of  houses,  or  the  agreement 
might  have  been  of  the  same  houses,  and  this  might 
have  been  put  into  the  hands  of  some  person  to  whom 
the  defendant  never  intended  to  give  a  guaranty,  and  it 
might  be  enforced  by  parol  evidence  showing  that  it 
was  intended  to  come  into  the  hands  of  that  person, 
while  the  defendant  might  resist  it  by  parol  evidence, 
so  that  the-  very  contest  would  take  place  which  the 
statute  was  intended  to  prevent.     The  mischief  would 


THE    STATUTE    OF    FRAUDS.  79 

not  be  effectually  remedied,  unless  we  held  that  this 
guaranty  was  not  sufficient." 

There  is  another  observation  applicable  to  all  the  five 
cases  provided  for  by  this  section  of  the  statute,  namely, 
that  the  agreement,  the  meaning  of  which  word  I  have 
just  explained,  need  not  be  contained  in  a  single  writing, 
but  may  be  collected  from  several.  You  will  find  that 
established  by  many  cases. 

*The  purchaser  of  flour  wrote  to  the  vendor  as  r:J:QA-| 
follows — "  1  hereby  give  you  notice  that  the 
corn  you  delivered  to  me  in  part  performance  of  my 
contract  with  you  for  one  hundred  sacks  of  good  English 
second  flour  at  455.  a  sack,  is  of  so  bad  a  quality  that  I 
cannot  sell  it  or  make  it  into  saleable  bread.  The  sacks 
of  flour  are  at  my  shop,  and  you  will  send  for  them, 
otherwise  I  shall  commence  an  action."  To  this  the 
vendors  answered  by  their  attorney  :  "  Messrs.  L.  con- 
sider that  they  have  performed  their  contract  with  you 
as  far  as  it  has  gone,  and  are  ready  to  complete  the  re- 
mainder ;  and  unless  the  flour  is  paid  for  at  the  expira- 
tion of  one  month,  proceedings  will  be  taken  for  the 
amount."  These  two  writings  were  considered  to  con- 
stitute a  sufficient  memorandum  of  the  contract.  This 
case  was  indeed  decided  upon  the  17th  section  of  the 
Statute  of  Frauds,  but  the  reason  of  the  decision  applies 
equally  to  the  4th  section.  (?')  In  another  instance,  on 
a  sale  by  auction,  the  particulars  of  sale  described  the 
premises,  and  the  conditions  of  sale  were  on  the  same 
sheet.  The  plaintiff  purchased  the  property,  and  on 
paying  the  deposit,  signed  an  agreement  indorsed  on 
the  before-mentioned  particulars  and  conditions,  in  the 
words  following : — "  I  do  hereby  acknowledge  myself 

(f)  Jackson  v.  Lowe,  1  Bing.  (8  E.  C.  L.  R.)  9.     Sec  Barker  i\  Allan, 
29  L.  J.  (Ex.)  100. 


80  smith's  law  of  contracts. 

the  purchaser  of  the  property  described  in  the  within 
particulars  at  and  for  the  price  or  sum  of  £94  10^.,  and 
p^i-o-i-i  I  do  hereby  undertake  *and  agree  to  perform  my 
part  of  the  conditions  therein  specified,  in  further- 
ance of  which  I  have  this  day  paid  the  sum  of  £18  ISs., 
being  the  amount  of  the  deposit,  as  also  the  sum  of 
£2  7s.,  being  my  moiety  of  the  government  duty;  As 
witness  my  hand  this  11th  day  of  June,  1857,  Isaac 
Dobell"  (the  plaintiff).  Neither  the  defendant  nor  any 
one  for  him  signed  the  agreement,  nor  was  his  name 
mentioned  in  it  or  in  the  particulars  or  conditions,  ex- 
cept that  in  the  particulars  of  sale  he  was  referred  to 
for  particulars  of  the  premises.  0:)  discovering  after- 
wards that  a  small  yard  mentioned  in  the  particulars 
w^as  not  comprised  in  the  lease  purchased,  which  defect 
was  not  known  at  the  time  of  sale  to  either  party,  the 
plaintiff's  attorney  wrote  to  the  defendant  as  follows  : — 
"  We  are  instructed  to  inform  you  that  Mr.  Dobell,  in 
consequence  of  your  not  having  shown  a  good  title  to 
the  premises  offered  for  sale  on  the  11th  instant  as  de- 
scribed in  the  particulars,  declines  taking  the  property, 
and  we  have  to  request  that  you  will  direct  the  auc- 
tioneer to  return  the  deposit  and  duty  received  by  him 
of  Mr.  Dobell,  and  that  you  will  remit  to  us  the  ex- 
penses incurred  in  this  matter,  and  make  some  arrange- 
ment for  payment  thereof."  On  this  the  defendant  sent 
a  letter  signed  by  him  to  the  plaintiff's  attorney,  in 
which  he  mentioned  having  "  stated  the  case  to  counsel 
relating  to  our  sale  to  Mr.  Dobell,"  and  added,  "  having 
obtained  his  opinion  thereon,  I  beg  to  acquaint  you  that 
r^oQ-i  the  ^reasonable  compensation  to  which  he  is  en- 
titled (alluding  to  a  provision  in  the  condition 
for  compensation)  on  our  securing  to  him  a  lease  of  the 
yard  adjoining  the  Aberdeen  Arms,  is  £11  IQs.     If  he 


THE    STATUTE    OF    FRAUDS.  82 

is  willing  to  accede  to  this,  the  business  may  be  com- 
pleted without  delay ;  if  not,  we  beg  to  be  understood 
as  now  calling  on  Mr.  Dobell  to  settle  the  compensation 
in  the  way  provided  for.  If  he  declines  this,  we  pre- 
sume you  will  accept  Chancery  process  for  him  at  our 
suit."  In  another  letter  to  the  plaintiff's  attorney,  the 
defendant  expressly  mentioned  the  abatement  in  the 
price  as  being  according  to  the  condition  of  sale.  It 
will  be  observed  in  this  case  that  the  letters  of  the  de- 
fendant refer  expressly  and  distinctly  to  the  conditions 
of  sale,  and  he  had  in  his  hands,  or  those  of  his  auc- 
tioneer, at  the  very  time,  the  conditions  of  sale  signed 
by  the  plaintiff  to  which  reference  is  made,  so  that  no 
parol  evidence  of  any  hind  was  requisite  to  sJioiv  a  contract 
binding  loth  parties,  except  evidence  of  the  handwriting 
of  each,  which  must  be  adduced  in  all  cases.  For  these 
reasons  the  Court  of  King's  Bench  was  of  opinion  that 
there  was  a  sufficient  contract  within  the  Statute  of 
Frauds.  (/I")  Neither  is  it  material  that  the  letters,  out 
"of  which  the  contract  may  be  proved,  are  written  to 
third  parties,  (/)  even  to  the  writer's  *own  agent,  r::-.oo-| 
provided  the  contract  be  fully  recognized  there- 
in. (?«)  A  remarkable  instance  of  the  application  of  this 
rule  is  afforded  by  the  case  of  Hammersley  v.  Baron  de 
BieL(7^)  It  will  be  recollected  that  one  of  the  cases  in 
which  a  written  contrnct  or  memorandum  is  required  by 
the  Statute  of  Frauds,  is  where  an}^  promise  is  made  in 
consideration  of  marriage.    In  the  present  instance,  pro- 

{Jk)  Dobell  V.  Hutchinson,  3  A.  &  E.  (30  E.  C.  L.  R.)  355  :  Ridgway  t'. 
Wharton,  27  L.  J.  (Ch.)  46;  6  H.  of  L.  C.  238;  Bauniann  v.  James,  L. 
R.  3  Ch.  508. 

[1]  Welford  v.  Beazley,  3  Atk.  503  ;  Owen  r.  Thomas,  3  Mjl.  &  K.  353  ; 
Cooper  V.  Smith,  15  East  103. 

(wi)  Gibson  v.  Holland,  L.  R.  1  C.  P.  1 ;  35  L.  J.  (C.  P.)  5. 

(m)  12  CI.  &  Fin.  45. 


83  smith's  law  of  contracts. 

posals  of  marriage  had  been  written  by  the  lady's 
brothers  by  her  father's  authority,  which  were  described 
therein  to  be  the  bases  of  the  arrangement,  subject,  of 
course,  to  revision;  and  as  sufficient  for  the  proposed 
husband  to  act  upon.  These  proposals  were  not  signed. 
A  letter,  afterwards  written  and  signed  by  the  father 
after  the  marriage,  admitting  the  terms  of  the  written 
proposals,  Avas  considered  as  a  recognition  of  them  as 
his  agreement,  and  sufficient  within  the  Statute  of 
Frauds. 

But  though,  where  there  are  several  papers,  the  agree- 
ment may  be  collected  from  them  all,  provided  they  are 
sufficiently  connected  in  sense  among  themselves,  so 
that  a  person  looking  at  them  all  together  can  make  out 
the  connection  and  the  meaning  of  the  whole  without 
the  aid  of  any  verbal  evidence;  yet  it  is  otherwise  wheij 
such  connection  does  not  appear  on  the  face  of  the 
PS41  "^'I'itings  themselves;  ''"'for,  to  let  in  parol  evidence 
in  order  to  connect  them  with  one  another,  would 
be  to  let  in  the  very  mischief  which  it  was  the  object  of 
the  framers  of  the  Act  to  avoid,  namely,  the  uncer- 
tainty and  temptation  to  falsehood  occasioned  by  allow- 
ing the  proof  of  the  contract  to  depend  on  the  recollec- 
tion of  witnesses:  and,  therefore,  where  a  written  agree- 
ment is  required  by  the  4th  section  of  the  statute,  it  is 
clear  that  several  writings,  not  bearing  an  obvious  con- 
nection m/cr  se  in  sense,  cannot  be  joined  together  by 
verbal  evidence  to  make  up  the  agreement.  This  was 
one  of  the  points  decided  in  the  great  case  of  Boydell 
V.  Brummond,  (o)  where  the  plaintiff  proposed  to  pub- 
lish an  edition  of  Shakespeare  with  splendid  engrav- 
ings, and  issued  a  prospectus  stating  the  terms.  A  copy 
of  the  prospectus  lay  in  his  shop,  and  beside  it  lay  a 

(o)  11  East  142. 


THE    STATUTE    OF    FRAUDS.  84 

book  headed  "^Shakespeare  JSubscribers,  their  Signatures :'' 
but  there  was  nothing  in  the  book  about  the  prospectus, 
or  in  the  prospectus  about  the  book.  The  defendant 
had  signed  the  book,  and,  having  afterwards  refused  to 
continue  taking  in  the  Shakespeare,  the  plaintiff  brought 
an  action  against  him.  Now,  the  Shakespeare  was  not 
to  be  finished  for  some  years,  and  therefore  the  case  was 
one  of  those  provided  for  by  the  4th  section  of  the 
Statute  of  Frauds,  falling  within  the  words  "any  agree- 
ment that  is  not  to  be  performed  within  one  3'ear  from 
'='the  making  thereof."  It  was,  therefore,  neces-  rMtor-i 
sary  that  it  should  be  in  writing,  and  that  that 
writing  should  be  ''^signed  by  the  party  to  be  charged, 
or  his  agent."  Now,  the  terms  of  the  agreement  were 
in  the  ^j>rospec/z«-s,  and  so  far  the  statute  had  been  com- 
plied with  ;  but  the  signature  unluckily  was  in  the  book : 
and  the  Court  held,  that,  as  the  prospectus  did  not  refer 
to  the  book,  or  the  book  to  it,  the  statute  had  not  been 
complied  with,  and  the  contract  could  not  be  enforced. 
"If,"  said  Le  Blanc,  J.,  "there  had  been  anything  in 
that  book  which  had  referred  to  the  particular  prospec- 
tus, that  would  have  been  sufficient ;  if  the  title  to  the 
book  had  been  the  same  with  that  of  the  prospectus,  it 
might  perhaps  have  done  :  but,  as  the  signature  now 
stands,  without  reference  of  any  sort  to  the  prospectus, 
there  was  nothing  to  prevent  the  plaintiff  from  substi- 
tuting any  prospectus,  and  saying  that  it  was  the  pro- 
spectus exhibited  in  his  shop  at  the  time  to  which  the 
signature  related:  the  case  therefore  falls  directly  within 
this  branch  of  the  Statute  of  Frauds." 

There  is  a  third  point  common  to  all  the  five  contracts 
mentioned  in  the  4th  section ;  it  is  with  regard  to  the 
signature.  The  words  are,  you  will  recollect,  ^'signed 
bg  the  i)arty  to  be  charged  therewith,  or  some  other  per- 


85  smith's  law  of  contracts. 

son  tlieveiinto  by  him  lawfully  authorized."  This  sig- 
nature, it  is  obvious,  is  most  regularly  and  properly 
placed  at  the  foot  or  end  of  the  instrument  feigned;  but 
r^oa-\    it  is  decided  in  *many  cases,  that  although  the 

signature  be  in  the  beginning  or  middle  of  the 
instrument,  it  is  as  binding  as  if  at  the  foot ;  although, 
if  not  signed  regularly  at  the  foot,  there  is  always  a 
question  whether  the  party  meant  to  be  bound  by  it  as 
it  stood,  or  whether  it  was  left  so  unsigned  because  he 
refused  to  complete  it.  But  when  it  is  ascertained  that 
he  meant  to  be  bound  by  it  as  a  complete  contract,  the 
statute  is  satisfied,  there  being  a  note  in  writing  showing 
the  terms  of  the  contract,  and  signed  by  him.  There- 
fore, where  in  the  case  of  the  sale  of  a  quantity  of  cot- 
ton yarn,  a  bill  of  parcels  was  sent  by  the  seller  to  the 
purchaser,  headed: — "London,  24th  October  1812. — 
Messrs.  John  Schneider  &  Co.,  bought  of  Thomas  Norris 
&  Co.,  agents,  cotton  yarn  and  piece  goods.  No.  3, 
Freeman's  Court,  Cornhill."  Following  this  was  a  list 
of  the  articles  sold,  the  particulars,  quantities,  and 
prices.  It  was  held,  in  an  action  for  not  delivering  the 
yarn,  to  contain  a  sufficient  memorandum  to  satisfy  the 
requirement  of  the  statute  as  to  the  signature  of  the 
party  to  be  charged.  (^:j)  In  this  case,  the  Avhole  of  the 
heading  of  the  bill  of  parcels  was  printed,  except  the 
words  "  Messrs.  John  Schneider  &  Co."  But  as  it  was 
then  given  out  to  the  other  contracting  party  by  the 
party  to  be  charged,  recognizing  the  printed  name  as 
p;.Qrr-|    mucli  as  if  he  had  sub'scribed  *his  mark  to  it, 

he  had  recognised  and  avowed  it  as  his  signa- 
ture. (^)  For  the  same  reason,  where  the  plaintiff's 
traveller  called  on  the  defendant  with  samples  of  hops, 

{p}  Schneider  v.  Norris,  2  M.  &  S.  286. 

(2)  See  Saunderf^on  v.  Jackson,  2  Bos.  &  P.  238. 


THE  STATUTE  OF  FRAUDS.  87 

and  agreed  with  him  for  sale  of  them,  and  the  defendant 
thereupon  wrote  in  a  book  of  his  own,  of  which  he  re- 
tained possession,  as  follows  : — "  Leeds,  19th  October 
1836. — Sold  John  Dodgson,  27  pockets  Playstead, 
1836,  Sussex,  at  103.5.,  the  bulk  to  answer  the  sample  : 
4  pockets  Selmes  Berkle3^s,  at  9f5s.,  samples  and  invoice 
to  be  sent  per  Rockingham  coach, — payment  in  banker's 
in  two  months,"  which  was  signed,  at  the  defendant's 
request,  by  the  plaintiff's  traveller  thus  : — "  Signed,  for 
Johnson  &  Co.,  J).  Morse,"  this  was  deemed  a  sufficient 
signature  of  the  contract  to  bind  the  defendant ;  for  the 
defendant's  name  was  contained  in  it  in  his  own  hand- 
writing, and  his  having  required  plaintiff's  agent  to  sign 
it  showed  that  he  meant  it  to  be  a  memorandum  of  con- 
tract between  the  parties,  (r)  But,  of  course,  where  it 
appears  that,  notwithstanding  the  insertion  of  the 
parties'  names  in  the  instrument,  it  was  intended  that 
their  signatures  should  be  affixed  in  the  proper  place, 
such  an  instrument  would  not  be  a  compliance  with  the 
statute,  as  it  could  not  be  considered  as  signed  by  r^Qo-\ 
*them.  Therefore,  where  articles  of  agreement 
contained  the  terms  of  a  contract  which  was  not  to  be 
performed  within  a  year,  purporting  to  be  made  between 
certain  persons  whose  names  were  stated  at  the  com- 
mencement of  the  articles,  and  who  were  described  as 
the  contracting  parties,  and  concluded  with  the  words, 
"  As  witness  our  hands,"  without  being  followed  by  any 
name  or  signature,  they  were  held  not  to  be  sufficiently 
signed  within  the  Statute  of  Frauds.  (5)     And  as  a  sig- 

(r)  Johnson  v.  Dodgson,  2  M.  &  W.  653.  See  Lobb  v.  Stanley,  5  Q. 
B.  (48  E.  C.  L.  R.)  574  ;  Lewis  v.  Lord  Kensington,  2  C.  B.  (52  E.  C.  L. 
R.)  463. 

(s)  Hubert  v.  Treherne,  3  M.  &  G.  (42  E.  C.  L,  R.)  743.  See  also 
Caton  V.  Caton,  L.  K.  2  IL  L.  127  ;  36  L.  J.  (Ch.)  886. 


88  smith's  law  of  contracts. 

nature  in  print  is  good,(z')  so  is  a  signature  in  pencil. 
.This,  indeed,  was  held  in  a  case  of  a  pencil  endorsement 
of  a  jM'omissory  note,  but  it  seems  equally  applicable  to 
the  signature  required  by  the  Statute  of  Frauds,  (m) 
There  is  also  little  or  no  doubt  that  a  party  may  sign, 
within  this  statute,  by  stamping  his  signature,  instead 
of  writing  it.(^')  It  seems,  too,  that  a  telegram  con- 
taining, as  usual,  the  names  of  the  sender  and  receiver, 
would  be  a  sufficient  writing  signed,  within  the  statute, 
to  bind  the  sender.  (2^)  The  signature  is  to  be  that  of 
the  party  io  he  charged ;  and,  therefore,  though,  as  I 
r*QQ-i  li'^^ve  pointed  out  to  you,  both  sides  of  the  *agree- 
ment  must  appear  in  the  writing,  the  considera- 
tion as  well  as  the  promise,  it  is  not  necessary  that  it 
should  be  signed  by  both  the  parties ;  it  is  sufficient  if 
the  party  suing  on  it  is  able  to  produce  a  writing  signed 
by  the  party  whom  he  is  seeking  to  charge.{yY  And 
such  a  writing  signed  is  sufficient  to  satisfy  the  4th 
section,  though  it  be  only  a  proposal  accepted  by  parol 
by  the  party  to  whom  it  is  made.(,^)     The  person,  how- 

(f)  Schneider  v.  Norris,  supra. 

(?0  Geary  v.  Physic,  5  B.  &  C.  (11  E.  C.  L.  R.)  234. 

{v)  Bennett  v.  Brumfitt,  L.  R.  3  C.  P.  28  ;  37  L.  -J.  (C.  P.)  25. 

[x)  Goodwin  v.  Francis,  39  L.  J.  (C.  P.)  121  ;  L.  R.  5  C.  P.  295. 

[y]  Laythoarp  v.  Bryant,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)-735. 

(z)  Reuss  V.  Picksley,  L.  R.  1  Ex.  342;  35  L.  J.  (Ex.)  218,  Ex.  Ch., 

^  As  it  was  in  Penniman  v.  Hartshorne,  13  Mass.  87;  Hawkins  v. 
Chace,  19  Pick.  502  :  Balland  v.  Walker,  3  Johns.  Cases  60 ;  Cl'ason  v. 
Bailey,  14  Johns.  487  ;  Douglass  v.  Spears,  2  N.  «fe  M.  207 ;  Anderson  v. 
Harold,  10  Ohio  399  ;  Smith  v.  Smith,  8  Blackf.  208.  By  the  New  York 
Revised  Statutes  the  memorandum  mus't  be  subscribed;  and  it  is  held, 
therefore,  that  a  signature  elsewhere  than  at  the  bottom  or  end  of  the 
writing  is  insufficient  to  satisfy  the  statute  as  thus  varied  :  Davis  v. 
Sliields,  26  Wend.  341. — r. 

Signature  l)y  initials  is  valid  and  parol  evidence  is  admissible  to  apply 
them  :  Sanborn  v.  Flagler,  9  Allen  474.  A  telegram  accepting  an  oiFer 
and  completing  a  contract  is  sufficient  to  take  a  case  out  of  the  statute : 
Trevor  v.  Wood,  36  N.  Y.  307. 


THE    STATUTE    OF    FRAUDS.  89 

ever,  who  seeks  to  enforce  the  agreement  has  not  the 
other  altogether  at  his  mercy,  but  must  either  do,  or  be 
ready  to  do,  his  own  part  of  the  agreement,  before  he 
can  seek  performance  on  the  part  of  the  person  who 
has  signed.  («) 

But  although  the  written  memorandum  may  be  made 
and  signed  subsequently  to  the  making  of  the  con- 
tract, (^)  yet  it  must  exist  before  an  action  is  brought 
upon  it.{c) 

The  last  point  I  shall  mention  common  to  all  the  con- 
tracts falling  wdthin  this  section  regards  the  consequence 
of  non-compliance  with  its  provisions.     The  consequence 
is,  not  that  the  unwritten  ^contract  shall  be  void,    r-.v-qin 
but  that  no  action  sJiall  he  brought  to  charge  the 
contracting  party  by  reason  of  ii.{d)     And  cases  may 
occur  in  which  the  contract  may  be  made  available  with- 
out  bringing   an   action    on  it;    and  in  which,  conse- 
quently, it  may,  though  unwritten,  be  of  some  avail. 
Thus,  for  instance,  if  it  has  been  partly  executed.  Courts 
1    of  Equity   will   enforce  its    complete    performance ;  (^) 
I    and  if  money  have  been  paid  in  pursuance  of  it,  that 
\\  payment  is  a  good  one  for  all  purposes  :  thus,  where  'i 
I  £100  was  paid  by  the  incoming  tenant  to  the  outgoing 
'  one,  partly  for  himself,  and  partly  for  the  landlady,  in 
pursuance    of  a  verbal    agreement,  and   the    outgoing 

confirming  Warner  v.  Willington,  3  Drew.  523  ;  Smith  v.  Feale,  2  C.  B. 
(N,  S.)  (89  E.  C.  L.  R.)  67  ;  26  L.  J.  (C.  P.]  143. 

[a]  Reuss  v.  Picksley,  L.  R.  1  Ex.  342,  353  ;  35  L.  J.  (Ex.)  218,  Ex. 
Ch. 

{b)  Leroux  v.  Brown,  22  L.  J.  (C.  P.)  1  ;  12  C.  B.  (74  E.  C.  L.  R.)  801. 

(c)  Bill  V.  Bament,  9  M.  &  W.  36,  qiicere, — see  Fricker  v.  Tomlinson, 
1  M.  &  G.  (39  E.  C.  L.  R.)  772. 

{d)  Per  Bosanquet,  J.,  in  Laythoarp  v.  Bryant,  supra.  See  In  re  Hil- 
liard,  2  D.  &  L.  919:  Sweet  v.  Lee,  3  M.  &  G.  (42  E.  C'.  L.  R.)  452; 
Crosby  v.  Wadsworth,  6  East  611;  see  Carrington  v.  Roots,  2  M.  & 
W.  248. 

(e)  Sugden,  V.  &  P.  c.  3,  s.  7. 


90  smith's  law  of  contracts. 

tenant  refused  to  pay  the  landlady  her  share,  saying 
that  there  was  no  writing,  and  that  words  were  but 
wind ;  on  the  landlady  bringing  her  action,  Lord  Ellen- 
borough  nonsuited  her,  on  the  ground  that  the  agree- 
ment, being  for  an  interest  in  land,  ought  to  have  been 
in  writing;  but  the  Court  of  Queen's  Bench  set  aside 
the  nonsuit,  with  Lord  Ellenborough's  own  concur- 
rence. (/)^  And  where,  to  an  action  for  goods  sold,  the 
defendant  pleaded  an  agreement  that,  in  consideration 
r*Q-|-|  of  the  defendant  giving  up  ^possession  of  certain 
premises  and  stock-in-trade,  the  plaintiff  should 
pay  him  £100,  and  also  discharge  him  from  all  debts 
and  causes  of  action,  which  premises  had  been  given  up 
and  the  £100  paid ;  it  was  decided  that  this  accord  and 
satisfaction  might  be  proved  by  parol ;  although,  if  it 
had  been  required  to  enforce  the  delivery  up  of  pos- 
session of  the  premises,  a  writing  might  have  been 
necessary.  (^) 

I  have  now  pointed  out  to  you  the  matters  in  which 
all  simple  contracts  agree,  ^nd  the  practical  differences 
which  exist  between  the  effect  of  tvritten  and  that  of 
verbal  contracts,  although  in  theory  both  sorts  fall 
within  the  denomination  Simple  Contracts.  I  have  de- 
scribed the  consequences  which  follow  from  the  rules  of 
evidence  upon  the  reduction  of  any  contract  whatever 
into  writing,  and  I  have  begun  to  describe  those  conse- 
quences which  follow  from  the  provisions  of  the  Statute 
of  Frauds,  in  the  cases  to  which  it  is  applicable.  But  as 
it  is  impossible  to  finish  the  consideration  of  that  statute 
this  evening,  I  shall  proceed  with  it  in  the  next  Lecture. 

(/)  Griffith  V.  Young,  12  East  513.     See  Cocking  v.  Ward,  1  C.  B. 
(50  E.  C.  L.  R.)  858. 

[g)  Lavery  v.  Turley,  30  L.  J.  (Ex.)  49. 

^  To  the  same  effect  is  Philbrook  v.  Belknap,  6  V^rm,  383. — r. 


THE    STATUTE   OF    FRAUDS.  92 


^LECTURE  III.  [*92] 

THE  FOURTH  SECTION  OF    THE  STATUTE  OF    FRAUDS. PROMISES 

BY  EXECUTORS  AND  ADMINISTRATORS. GU  VRANTIES. MAR- 
RIAGE CONTRACTS. CONTRACTS   FOR  THE  SALE  OF    LAND. 

AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A   YEAR. 

I  HAVE  now  touched  on  the  points  which  [with  one 
exception  made  by  the  provisions  of  a  recent  statute  in 
the  case  of  guaranties]  equally  apply  to  each  of  those 
five  species  of  contracts  to  which  the  4th  section  of  the 
Statute  of  Frauds  relates ;  those,  namely,  which  regard 
the  appearance  in  the  writing  of  the  consideration  and 
other  terms  as  well  as  the  promise,  the  signature  which 
the  statute  requires,  and  the  consequences  of  not  reduc- 
ing into  writing  contracts  which  the  statute  requires 
should  be  so  evidenced.  It  remains,  before  terminating 
the  consideration  of  that  section  of  the  Act,  to  consider 
each  of  the  five  particular  species  of  contracts  to  which 
it  applies. 

The  Jif'st  is — an?/  special  p)^^omise  hi/  an  executor  or 
administrator  to  ansiver  damages  out  of  Ms  otvn  estate. 

The  principal  case  on  this  subject  is  Rann  v.  r::^qo-| 
*Hughes,(a)  which  went  up  to  the  House  of 
Lords.  The  point  decided  in  that  case  is,  that  the 
Statute  of  Frauds  in  no  manner  affected  the  validity  of 
such  promises,  or  rendered  them  enforceable  in  any  case 
in  which  at  common  law  they  would  not  have  been  so; 
but  merely  required  that  they  should  be  reduced  into 
writing,  leaving  the  written  contract  to  be'  construed 

[a]  7  T.  R.  350,  n.  ;  7  Bro.  Pari.  C.  550 ;  Forth  v.  Stanton,  1  Wms, 
Saund.  p.  211,  n.  2. 


93  smith's  law  of  contracts. 

in  the  same  manner  as  a  parol  contract  would  have 
been,  had  there  been  no  writing.  The  opinion  of  the 
judges  was  delivered  to  the  House  of  Lords  by  L.  C. 
Baron  Skynner,  and  is  extremely  instructive.  Being 
very  short,  it  is  here  inserted  : — "  It  is  undoubtedly 
true  that  every  man  is  by  the  law  of  nature  bound  to 
fulfil  his  engagements.  It  is  equally  true  that  the  law 
of  this  country  supplies  no  means  nor  affords  any  remedy 
to  compel  the  performance  of  any  agreement  made  with- 
out sufficient  consideration.  Such  agreement  is  nudum 
pactum  ex  quo  non  oritur  actio ;  and  whatever  may  be 
the  sense  of  this  maxim  in  the  civil  law,  it  is  in  the 
last-mentioned  sense  only  that  it  is  to  be  understood  in 
our  law.  The  declaration  states  that  the  defendant, 
being  indebted  as  administratrix,  promised  to  pay  when 
requested,  and  the  judgment  is  against  the  defendant 
generally.  The  being  indebted  is  of  itself  a  sufficient 
r=5=QzL1  consideration  to  ground  a  promise,  but  '''the 
promise  must  be  co-extensive  with  the  conside- 
ration, unless  some  particular  consideration  of  fact  can 
be  found  here  to  warrant  the  extension  of  it  against  the 
defendant  in  her  own  capacity.  If  a  person  indebted 
in  one  right,  in  consideration  of  forbearance  for  a  par- 
ticular time,  i:»romise  to  pay  in  another  right,  this  con- 
venience will  be  a  sufficient  consideration  to  warrant  an 
action  against  him  or  her  in  the  latter  right ;  but  here 
no  sufficient  consideration  occurs  to  support  this  demand 
against  her  in  her  personal  capacity,  for  she  derives  no 
advantage  or  convenience  from  the  promise  here  made. 
For  if  I  promise  generally  to  pay  upon  request  what  I 
was  liable  to  pay  upon  request  in  another  right,  I  derive 
no  advantage  or  convenience  from  this  promise,  and 
therefore  there  is  not  sufficient  consideration  for  it. 
But  it  is  said  that  if  this  promise  is  in  writing,  that 


THE    STATUTE    OF    FRAUDS.  94 

takes  away  the  necessity  of  a  consideration,  and  obviates 
the  objection  of  nudum  pactum,  for  that  cannot  be 
where  the  promise  is  put  in  writing :  and  that  after  ver- 
dict, if  it  were  necessary  to  support  the  promise  that 
it  shonki  be  put  in  writing,  it  will  after  verdict  be  pre- 
sumed that  it  was  in  writing  :  and  this  last  is  certainly 
true  ;  but  that  there  cannot  be  nudum  pactum,  in  writing, 
whatever  may  be  the  rule  of  the  civil  law,  there  is  cer- 
tainly none  such  in  the  law  of  England.  All  contracts 
are  by  the  laws  of  England  distinguished  into  agree- 
ments by  specialty  and  agreements  by  parol ;  nor  is 
there  any  such  *third  class,  as  some  of  the  coun-  po.--] 
sel  have  endeavored  to  maintain,  as  contracts  in 
writing.  If  they  be  merely  written  and  not  specialties, 
they  are  parol,  and  a  consideration  must  be  proved. 
But  it  is  said  that  the  Statute  of  Frauds  has  taken 
away  the  necessity  of  any  consideration  in  this  case ; 
the  Statute  of  Frauds  was  made  for  the  relief  of  per- 
sonal representatives  and  others,  and  did  not  intend  to 
charge  them  further  than  by  common  law .  they  were 
chargeable."  His  Lordship  here  read  those  sections  of 
that  statute  which  relate  to  the  present  subject.  He 
observed,  "  that  the  words  were  merely  negative,  and 
that  executors  and  administrators  should  not  be  liable 
out  of  their  own  estates,  unless  the  agreement  upon 
which  the  action  was  brought,  or  some  memorandum 
thereof,  was  in  writing  and  signed  by  the  party.  But 
this  does  not  prove  that  the  agreement  was  still  not 
liable  to  be  tried  and  judged  of  as  all  other  agreements 
merely  in  writing  are  by  the  common  huv,  and  does  not 
prove  the  converse  of  the  proposition,  that  when  in 
writing  the  party  must  be  at  all  events  liable!"  He  said 
that  "  all  his  brothers  concurred  with  him  that  in  this 
case  there  was  not  a  sufficient  consideration  to  support 


95  smith's  law  of  contracts. 

this  demand  as  a  personal  demand  against  the  defendant, 
and  that  its  being  now  supposed  to  have  been  in  writing 
makes  no  difference."^ 

The  next  species  of  promise  mentioned  in  the  4th 
section  is,  any  special  promise  to  anstver  for  the  debt, 
default,  or  miscarriage  of  another  person. 
r*qpi  *This  includes  all  those  promises  which  we 
ordinarily  denominate  guaranties,  and  has  given 
rise  to  a  ver}^  great  deal  of  discussion. 

In  the  first  place,  it  has  been  decided,  that  the  sort 
of  promise  which  the  statute  means,  and  which  must  be 
reduced  into  writing,  is  a  j)romise  to  answer  for  the 
deht,  default,  or  miscarriage  of  another  person,  for  tvhich 
that  other  person  himself  continues  liaUe.  Thus,  if  A.  go 
to  a  shop,  and  say,  "  Let  B.  have  what  goods  he  pleases 
to  order,  and  if  he  do  not  pay  you  /  will,"  that  is  a  pro- 
mise to  answer  for  a  'debt  of  B.  for  which  B.  is  himself 
also  liable  :  and  if  it  be  sought  to  enforce  it,  it  must  be 
shown  to  have  been  reduced  into  writing :  but,  if  A. 
had  said,  "  Let  B.  have  goods  on  my  account,"  or  "  Let 
B.  have  goods,  and  charge  me  with  them :"  in  these 
cases,  no  writing  would  be  required,  because  B.  never 
would  be  liable  at  all,  the  goods  being  supplied  on  A.'s 
credit  and  responsibility,  though  handed  by  his  direc- 
tions to  B.(^)2 

(6)  Birkmja-  v.  Darnell,  Salk.  27  ;  and  the  notes  to  Forth  v.  Stanton,  1 
Wms.  Saund.  211  b,  211  c. 

^  Sidle  V.  Anderson,  45  Penn,  St.  464. 

*  The  party  for  whom  the  promise  is  made  must  be  liable  to  the  party 
to  whom  it  is  made  :  Boykin  v.  Donlonde,  37  Ala.  577  ;  Downey  v.  Hinch- 
man,  25  Ind.  453.  A  request  to  one  to  work  for  the  benefit  of  a  third 
party  and  a  promise  to  pay,  form  an  original,  not  a  collateral  promise  : 
Brown  v.  George,  17  N.  H.  128  ;  Dorwin  v.  Smith,  35  Verm.  69 ;  Smith 
V.  Rogers,  Ibid.  140 ;  Williams  v.  Little,  Ibid.  323.  A.'s  promise  to  pay 
a  debt  due  from  C.  need  not  be  in  writing  if  it  is  made  in  consideration 
of  C.'s  release  therefrom  :  Day  v.  Cloe,  4  Bush.  563  ;  Packer  v.  Benton, 


GUARANTIES.  96 

Upon  these  grounds  where  there  were  three  execu- 
tors and  trustees,  and  A.  Orrell,  one  of  them,  renounced 
to  enable  himself  to  purchase  some  of  the  testator's  pro- 
perty, wiiich,  while  trustee,  he  could  not  do  without 
leave  of  the  Court,  and  afterwards  purchased  the  pro- 
perty, and  losses  were  incurred  by  the  trustees,  and  a 
claim  for  them  was  raised  in  Equity  by  the  legatees, 
whereupon  "^Orrell,  by  his  solicitor,  wrote  to  r:::n7i 
them  agreeing  to  pay  £3000  in  satisfaction  of 
these  losses  ;  the  Court  of  Chancery  held  that  this  letter 
was  not  within  the  Statute  of  Frauds  as  a  promise 
merely  to  satisfy  the  debt  of  another,  but  was  an  under- 
taking to  pay  the  debt  which  it  was  insisted,  rightly  or 
wrongly,  that  Orrell  was  liable  for.(c) 

For  this  reason,  where  the  plaintiff  had  issued  exe- 
cution against  Lloyd  for  debt,  and  Lloyd,  with  the 
j)laintiff's  consent,  conveyed  all  his  property  to  defend- 
ant, who  thereupon  undertook  to  pay  the  plaintiff  the 
debt  due  from  Lloyd  upon  the  plaintiff's  withdrawing 
the  execution,  and  giving  up  his  claim  on  Lloyd ;  the 
defendant's  undertaking  was  held  not  to  be  a  promise 
to  answer  for  another's  debt  for  which  that  other  re- 
mained liable.  (J) 

But  where  Buxton  had  sued  the  defendant  in  Chan- 
cery,  and  had   retained   j)laintiff  in  that   suit  as  his 

(c)  Orrell  v.  Coppock,  26  L.  J.  (Ch.)  2G9  ;  Adams  v.  Dansey.  6  Bing. 
(19  E.  C.  L.  R.)  506  ;  Batson  v.  King,  28  L.  J.  (Ex.)  327. 
{d)  Bird  v.  Gammon,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  883. 

35  Conn.  343  ;  Yale  ?'.  Edgerton,  14  Minn.  194  ;  Harris  v.  Young,  4  Ga. 
65:  Uhler  v.  Farmer's  Bank,  64  Penn.  St.  406.  The  statute  does  not 
apply  where  the  promise  is  to  pay  his  own  debt,  though  it  may  be  inci- 
dentally a  guarantee  of  the  obligation  of  another  :  Malone  v.  Keene,  44 
Penn.  St.  107  ;  Stoudt  v.  Hine,  45  Ibid.  30;  Besshears  v.  Rowe,  46  Mo. 
501  :  Chamberlin  v.  Ingalls,  38  Iowa  300 ;  Blair  Land  Co.  v.  Walker,  39 
Ibid.  406  :  Lester  v.  Bowman,  Ibid.  611. 


97  smith's  law  of  contracts. 

solicitor,  and  costs  had  been  incurred  to  the  plaintiif, 
and  it  was  agreed  by  the  three  that  the  suit  should  be 
discontinued,  and  that  the  defendant  should  pay  the 
plaintiff  these  costs,  it  was  held  that  since  Buxton's 
debt  to  the  plaintiff  remained,  he  being  still  liable  to 
pay  plaintiff's  costs,  the  defendant's  promise  was  to  pay 
P^qo-i    the  debt  of  another,  '''and  could  not  be  sued  upon, 

not  being  in  writing,  (c)  In  another  instance, 
the  plaintiff  became  bail  for  one  Hadley,  at  the  defend- 
ant's request,  and  upon  his  promise  to  indemnify  the 
plaintiff  from  all  damages  and  expenses  which  he  should 
sustain  by  reason  of  his  so  becoming  bail ;  and  the  Court 
clearly  held  this  was  a  promise  to  answer  for  the  default 
of  another,  and  was  not  the  less  so  because  it  was  in 
the  form  of  a  promise  to  indemnify.  (/)  In  a  recent 
case  the  plaintiff  contracted  to  supjjly  A.  with  iron 
plates,  and  delivered  a  part  of  them,  but  refused  to  de- 
liver the  rest  unless  he  was  paid  in  cash.  The  defend- 
ant, who  had  an  interest  in  the  contract,  thereupon 
agreed  that  if  the  plaintiff  would  deliver  the  remainder 
he  would  cash  A.'s  acceptances  for  the  goods  already 
and  thereafter  to  be  delivered,  and  protect  the  plaintiff 
from  the  bills  when  due.  The  defendant  was  to  receive 
3  per  cent,  on  the  amount  of  the  bills.  It  was  held 
that  a  contract  to  give  a  guaranty  is  required  to  be  in 
writing  as  much  as  the  guaranty  itself:  that  here,  there 
was  substantially  a  contract  that  if  A.,  the  buyer  of  the 
goods,  did  not  pay  for  them  when  the  acceptance  be- 
came due,  the  defendant  would  indemnify  the  plaintiff 
pi-QQ"!    '"^g'^^ii^st  the  buyer's   default,  which  was  an  en- 

ffaaement  to  answer  for  the  debt  *or  default  of 

(e)  Tomlinson  v.  Gell,  6  A.  &  E.  (33  E.  C.  L.  R.)  564. 
If)  Green  v.  Cresswell,  10  A.  &  E.  (37  E.  C.  L.  R.)  453.     See  Cripps 
V.  Ilartnoll,  32  L.  J.  (Q.  B.)  381,  Ex.  Ch. 


GUARANTIES.  99 

another,   and  not  being  in   writing    could   not  be   en- 
forced. (^) 

Goodman  v.  Chase  (A)  presents  rather  a  singular  in- 
stance of  the  application  of  the  rule  of  construction  of 
which  I  have  been  speaking.  In  that  case,  a  debtor 
had  been  taken  in  execution,  and  Chase,  in  consider- 
ation that  the  creditor  would  discharge  him  out  of 
custody,  promised  to  pay  his  debt;  when  the  debtor 
was  accordingly  discharged.  It  was  held,  that  this 
promise  need  not  be  in  writing ;  for  that,  by  discharging 
the  debtor,  out  of  execution,  the  debt  was  gone ;  it  hav- 
ing been,  as  you  are  probably  aware,  before  the  coming 
into  operation  of  stat.  32  &  33  Vict.  c.  62  (The  Debtors 
Act,  1869),  ss.  4,  5,  a  rule  of  law  that  if  a  debtor  were 
once  taken  in  execution  and  discharged  by  his  creditor's 
consent,  that  operated  as  a  satisfaction  of  the  debt  ;^  and 
therefore  that,  the  debtor  having  ceased  to  be  liable,  the 

((/)  xAIallett  V.  Bateman,  16  C.  B.  '(N.  S.)  (Ill  E.  C.  L.  R.)  530;  33 
L.  .J.  (C.  P.)  243  ;  s.  c.  in  Ex.  Ch.,  L.  R.,  1  C.  P.  163  ;  35  L.  J.  (C.  P.) 
40. 

(A)  1  B.  &  Aid.  297  ;  Butcher  v.  Steuart,  11  M.  &  W.  857. 

^  Sharp  V.  Specknagle,  3  S.  &.  R.  463  ;  Palethorpe  v.  Lesher,  2  Rawle 
274:  Snevily  v.  Read,  9  Watts  396;  Lathrop  v.  Briggs,  8  Cow.  171  : 
Runsom  v.  Keyes,  9  Ibid.  128  ;  and  this,  although  he  may  have  been 
discharged  on  terms  not  afterward  complied  with:  1  T.  R.  558  ;  6  Ibid. 
525  ;  7  Ibid.  420.— r. 

A  judgment  creditor,  who  had  taken  the  body  of  his  debtor  in  execu- 
tion, agreed  that  he  might  be  set  at  liberty  on  giving  security  to  abide 
the  event  of  the  trial  of  an  issue  to  be  framed  for  ascertaining  whether 
he  had  the  means,  by  the  property  in  his  marriage  settlement  or  other- 
wise, of  satisfying  the  judgment;  the  debtor  acknowledging  that  this 
agreement  was  made  for  his  accommodation,  without  prejudice  to  the 
creditor's  right  by  the  debtor's  enlargement.  The  issue  was  tried  accor- 
dingly, and  found  for  the  debtor.  Held,  that  the  taking  of  the  body  of 
the  debtor  in  execution  was  a  satisfaction  of  the  debt,  at  law  ;  and  that 
equity  would  not  enforce  the  debt  against  property  afterwards  coming 
to  the  debtor  on  the  death  of  his  wife,  by  the  trusts  of  the  marriage 
settlement :  IMagniac  v.  Thompson,  15  How.  (S.  C.)  281. 


99  smith's  law  of  contracts. 

promise  to  pay  the  amount  was  not  a  promise  to  pay 
any  sum  for  which  another  person  was  res^^onsible,  and 
therefore  did  not  require  to  be  reduced  into  writing.  If 
what  was  originally  the  debt  of  another  has  been  made 
by  the  defendant  his  own  debt,  it  cannot  afterwards,  as 
between  the  creditor  and  himself,  be  considered  the 
debt  of  another.  (/) 

f===in(l1  '''But  take  the  case  where  one  makes  a  pro- 
mise to  be  answerable  for  the  debt  of  another, 
and  that  other  never  becomes  legally  indebted  to  the 
promisee.  Is  that  within  this  branch  of  the  4th  sect, 
of  the  Statute  of  Frauds  ?  The  Court  of  Queen's  Bench, 
in  Mountstephen  v.  Lakeman(y)  held  that  it  might  be, 
if  at  the  time  the  promise  was  made  the  promisor  and 
promisee  expected  that  a  legal  obligation  would  be  in- 
curred by  the  third  person.  In  that  case  the  plaintiff 
had  been  employed  to  construct  a  main  sewer  by  a 
Local  Board  of  Health,  of  which  the  defendant  was 
chairman.  When  the  sewer  was  nearly  completed  the 
board  gave  notice  (under  11  &  12  Vict.  c.  63,  s.  69)  to 
the  occupiers  of  the  adjoining  houses,  "to  connect  their 
drainage  within  21  days,  or  the  board  would  do  the 
work  at  their  expense.  Before  the  21  days  had  ex- 
pired, the  plaintifi",  having  completed  the  sewer,  was 
about  to  leave  the  place  with  his  carts,  etc.,  when  the 
defendant  sent  after  him,  and  the  following  conversation 
took  place.  The  defendant  said  ;.  "What  objection  have 
you  to  making  the  connections  ?"   The  plaintiff  answered ;  [ 

"  I  have  none  ;  if  you  or  the  board  will  order  the  work,  t 

or  become  responsible  for  the  payment."  The  defendant 
replied :  "  Go  on  and  do  the  work,  and  I  will  see  you 

[i]  Fitzgerald   r.   Dressier,  29  L.  J.   (0.   P.)   113:  7  C.  B.   (N.   S.) 
(97  E.  C.  L  R.)  374. 
U)  L.  R.  5  Q.  B.  613;  39  L.  J.  (Q.  B.)  275. 


GUARANTIES.  100 

paid."  PlaintifF  accordingly  did  the  work  under  the 
superintendence  of  the  surveyor  of  the  '^board  ;  p-,  q-.-, 
and  sent  in  the  account  to  the  board  debiting 
them  with  the  amount.  The  board  refused  payment  on 
the  ground  that  they  had  not  authorized  the  order,  and 
after  more  than  two  years,  the  account  being  still  un- 
paid, the  plaintiff  brought  an  action  against  the  defend- 
ant. The  Court  of  Queen's  Bench  thought  that  the 
conversation  did  not  amount  to  an  undertaking  of  the 
defendant  to  be  primarily  liable  for  the  work ;  but  only 
to  a  promise  that,  if  the  plaintiff  would  do  the  work  on 
the  credit  of  the  board,  the  defendant  would  pay  if  the 
board  did  not ;  and  that  this  was  a  promise  to  be  answ^er- 
able  for  the  debt  of  another  within  sect.  4  of  the  Statute 
of  Frauds,  which,  not  being  in  writing  could  not  be  en- 
forced. The  Court  of  Exchequer  Chamber  how^ever 
thought  that  there  was  evidence  on  which  the  jury 
might  have  found  that  the  defendant  agreed  to  be  pri- 
marily liable,  and  on  this  ground  reversed  the  judgment 
of  the  Queen's  Bench,  (/i?)  The  affirmative  proposition 
therefore  laid  dowii  by  the  Court  of  Queen's  Bench 
being  in  the  opinion  of  the  Court  of  Appeal  not  neces- 
sary to  the  decision  of  the  case,  the  proposition  itself 
seems  at  present  still  doubtful,  so  far  at  least  as  it  is 
inconsistent  with  the  previous  decisions. 

It  was  at  one  time  thought  that  a  verbal  promise, 
even  to  answer  for  the  debt  of  another  for  which  that 
other  remained  liable,  might  be  available  if  r:-:-|n9-) 
^founded  on  an  entirely  new  consideration  con- 
ferring a  distinct  benefit  upon  the  party  making  such 
promise.  This  idea  is,  however,  confuted  by  Serjt. 
Williams,  in  his  elaborate  note  to  the  case  of  Forth  v. 
Stanton. (/)     The  rule  there  laid  down  by  him.  which 

[k]  L.  R.  7  Q.  B.  196  ;  41  L.  J.  (Q.  B.)  67.       (I)   I  Wins.  Saund.  211. 


102  smith's  law  of  contracts. 

has  ever  since  been  approved  of,  is,  that  the  only  test 
and  criterion  by  which  to  determine  whether  the  pro- 
mise needs  to  be  in  writing,  is  the  question  whether  it 
is  or  is  not  a  promise  to  answer  for  a  debt,  default,  or 
miscarriage  of  another,  for  which  that  other  continues 
liable. (^w)  If  it  be  so,  it  must  be  reduced  into  writing; 
nor  can  the  consideration  in  any  case  be  of  importance 
except  in  such  cases  as  Goodman  v.  Chase,  in  which 
the  consideration  to  the  person  giving  the  promise  is 
something  which  extinguishes  the  original  debtor's  lia- 
bility. («y    It  has  also  been  considered,  that,  in  order  to 

[in)  Ilod-son  v.  Anderson,  3  B.  &  C.  (10  E.  C.  L.  R.)  855  ;  Taylor  v. 
Hilary,  1  C.  M.  &  R.  741  ;  Browning «?.  Stallard,  5  Taunt.  (1  E.  C.  L. 
R.)  450. 

(«)  You  will  see  Serjt.  Williams's  criterion  approved  of  in  Green  v. 
Oresswell,  10  A.  &  E.  (37  E.  C.  L.  R.)  453,  and  Tomlinson  v.  Gell,  6  A. 
&  E.  (33  E.  C.  L.  R.)  564. 

^  To  guard  against  the  danger  arising  from  the  facility  by  which 
loose  or  ill-remembered  words  might  be  tortured  into  a  contract  on  the 
part  of  him  who  used  them,  the  coinmon  law  wisely  provided  that  a  lia- 
l)ility  should  not  depend  upon  mere  words  unaccompanied  by  a  conside- 
ration for  their  basis.  And  as  the  danger  was  felt  to  be  the  more  strong 
where  the  words  related  not  to  an  undertaking  by  a  party  for  his  own 
l)enetit,  but  on  behalf  of  a  third  person,  the  fourth  section  of  the  Statute 
of  Frauds  superadded  a  writing  to  the  common  law  requirement  of  a 
considei'ation  Whether  such  a  provision  has  been  conducive  of  more 
benefit  than  harm  may  well  be  doubted  (see  Holmes  v.  Knights,  10 
N.  H.  176),  for  the  decisions  to  which  it  has  given  rise  are  as  remark- 
able for  their  multitude  as  for  the  difficulty  of  their  perfect  classification. 

The  cases  may  naturally  be  divided  into,  those  where  the  promise  of 
guarantee  was  concurrent  with  the  principal  contract,  and  those  where 
it  was  suhseqiient  to  its  creation. 

1.  Under  the  first  of  these  classes,  the  common  law  is  satisfied  wherever 
the  promise  is  made  at  the  same  time  as  the  principal  conti'act,  and  is 
an  essential  inducement  to  it.  No  other  consideration  is  necessary  than 
that  moving  between  the  creditor  and  the  original  debtor  :  Kirby  v. 
(Joles,  Oi'O.  Eliz.  137  ;  and  it  matters  not  whether  the  promise  be  abso- 
lute or  conditional  and  dependent  upon  default  of  the  other:  Leonard 
v.  Vredenburg,  8  Johns.  29  ;  Snevily  v.  Johnson,  1  W.  &.  S.  307. 

The  fourth  section  of  the  Statute  of  Frauds,  however,  altered  the  com- 


I 


GUARANTIES.  102 

make  the  statute  applicable,  the  immediate  object  for 
requiring  the  defendant's  liability  must  be,  that  he  shall 

mon  law  to  this  extent, — where  the  promise  is  conditional  and  depend- 
ent upon  the  default  of  the  other,  it  must  be  in  writing  ;  where,  how- 
ever, it  is  not  thus  conditional  and  dependent,  but  is  direct  and  absolute, 
the  case  rests  as  at  common  law,  and  the  statute  does  not  apply.  But 
there  is  a  class  of  cases  which,  proceeding  upon  the  suggestion  of  Mr. 
Serj.  "Williams,  sujyra,  seem  to  determine  that  however  direct  and  abso- 
lute the  contract  of  the  defendant  may  be,  it  shall  not  be  deemed  to  be 
a  direct  undertaking,  so  as  to  take  the  case  out  of  the  statute,  unless  all 
liability  is  withdrawn  from  the  other  party,  and  tt-rown  entirely  upon 
the  shoulders  of  the  defendant  •,  in  other  words,  although  there  may  be 
a  joint  contract,  yet  if  the  consideration  move  only  to  one,  unless  all  the 
credit  is  given  to  the  other,  the  engagement  of  that  other  is  collateral 
and  not  direct ;  it  is,  therefore,  within  the  statute,  and  he  is  not  liable 
unless  his  promise  and  its  consideration  appear  in  writing  :  Rogers  v. 
Kneeland,  13  Wend.  114;  Brady  w.  Sackrider,  1  Sandf.  515;  Cahill  «. 
Bigelow,  18  Pick.  369  ;  Elder  v.  Wariield,  7  Harr.  &  Johns.  397  ;  Blake 
V.  Parlin,  22  Me.  395  ;  Aldrich  v.  Jewell,  12  Verm.  126  ;  Smith  v.  Hyde, 
19  Ibid.  56  ;  Taylor  v.  Drake,  4  Strobh.  437  ;  Ware  v.  Stephenson,  lU 
Leigh  167  ;  Rhodes  v.  Leeds,  3  Stew.  &  For.  212  ;  Faires  v.  Lodanc,  10 
Ala.  50  ;  Holmes  v.  Knights,  10  N.  H.  177  ;  Proprietors  v.  Abbott,  14 
Ibid.  159. 

It  has  been  said,  that  it  may  admit  of  question  whether  the  applica- 
tion of  this  principle  has  not  been  carried  too  far  in  some  cases,  and 
whether  what  was  in  truth,  as  between  the  parties,  the  collateral  lia- 
bility, has  not  by  means  of  it  been  transformed  into  a  principal  liability, 
and  the  real  principal  debtor  thereby  discharged  through  the  operation 
of  the  statute  :  Holmes  v.  Knights,  10  N.  H.  178  ;  and  practically  it  uiay 
often  happen  that  a  tradesman,  thinking  to  increase  his  security  by 
charging  the  goods  to  both  parties,  by  that  very  means,  under  the  appli- 
cation of  the  rule  sanctioned  by  the  weight  of  authority,  loses  his  remedy 
against  one  of  them. 

It  has,  moreover,  been  suggested,  upon  great  apparent  soundness  of 
principle  (in  Mr.  Hare's  note  to  Birkmyr  v.  Darnell,  2  Smith  Lead.  Cas. 
311,  4th  Am.  ed.),  that  the  question  of  the  defendant's  liability  being 
direct  and  collateral,  is  not  necessarily  wholly  dependent  upon  the  with- 
drawal of  all  credit  from,  and  the  consequent  non-liability  of,  the  party 
who  receives  the  consideration  ;  in  other  words,  that  there  may  be  a 
direct  liability,  even  where  the  other  party  is  also  liable.  Thus,  where 
two  jointly  purchase  goods,  the  liability  of  one  is  in  no  degree  lightened 
by  the  fact  of  the  other  being  also  liable,  nor,  where  the  liability  is 
thus  co-extensive,  is  it  changed  in  any  way  by  the  goods  being  intended 
8 


102 


SMITH  S    LAW    OF   CONTRACTS. 


pay  the  debt  of  another  if  that  other  does  not ;  and  that, 
consequently,  where  the  immediate  object  is  that  an 


for  one  rather  than  for  the  other, — each  being  still  directly  liable,  the 
contract  cannot  be  said  to  be  "to  answer  for  the  default  of  another,'" 
and  the  case  would  seem  to  be  unaffected  by  the  statute. 

Thus,  in  Wainwright  v.  Straw,  15  Verm.  215,  it  was  held  that  where 
a  stove  was  sold  to  two  for  the  use  of  one,  each  was  liable,  and  no  writ- 
ing was  necessary.  And  where  the  promises  are  several  instead  of  joint, 
yet,  if  each  has  bound  himself  directly  and  absolutely,  the  mere  fact 
that  the  consideration  moves  to  one  only,  ought  not,  it  would  seem,  to 
turn  into  a  mere  collateral  that  which  was  in  fact  an  original  contract. 
''  It  would  scarcely  seem,"  as  was  said  by  Story,  J.,  in  D'Wolf  v. 
Rabaud,  1  Pet.  500,  "  a  case  of  a  mere  collateral  undertaking,  but 
rather,  if  one  might  use  the  phrase,  a  trilateral  contract.  Each  is  a 
direct,  original  promise,  founded  upon  the  same  consideration  :"  Towns- 
ley  V.  Sumral,  2  Ibid.  182  ;  Proprietors  v.  Abbott,  14  N.  H.  157.  Such 
a  view  is  not,  however,  recognised  by  the  class  of  cases  first  referred  to, 
and  in  Taylor  v.  Drake,  4  Strobh.  437,  it  was  said  that  to  make  the  de- 
livery of  goods  to  the  one  also  serve  as  a  consideration  for  the  promise 
of  the  other,  would  be  to  strike  down  the  statutory  shield  at  a  blow. 

2.  Where  the  promise  is  given  subsequently  to  the  creation  of  the 
debt,  it  is  evident  that  the  mere  existence  of  that  debt  cannot,  even  at 
common  law,  be  a  sufficient  consideration  for  the  promise.  (See  iuj'ru, 
notes  to  page  112.)  Another  consideration  must  exist  to  support  the 
promise,'  and  this  may  be  one  of  two  kinds, — it  may  either  grow  out  of 
the  debt  itself,  being  connected  therewith,  such  as  the  forbearance  to  sue 
the  original  debtor,  or  it  may  be  a  new  and  independent  consideration. 
In  the  first  case,  although  the  promise  could  be  supported  at  common 
law,  it  is  within  the  statute,  and  a  writing  is  necessary  ;  in  the  second, 
the  statute  does  not  apply :  Leonard  v.  Vredenburgh,  8  Johns.  29. 

Thus,  it  is  well  settled  that  a  forbearance  to  sue  the  original  debtor, 
or  the  discontinuance  of  a  suit  already  brought,  being  considerations 
connected  with,  and  growing  out  of,  the  original  contract,  are,  though 
entirely  sufficient  at  common  law,  nevertheless  within  the  Statute  of 
Frauds  :  Fish  v.  Hutchinson,  2  Wils.  94  ;  Bennett  v.  Pratt,  4  Denio  275  ; 
Durham  v.  Arledge,  1  Strobh.  5  ;  Nelson  v.  Boynton,  3  Mete.  396  ; 
Stone  V.  Symmes,  18  Pick.  467.  So,  when  the  consideration  consists  in 
the  performance  of  the  preceding  contract,  as  where  a  plaintiff  having 
been  employed  by  a  contractor  to  build  certain  walls  for  the  defendant, 
refused  to  go  on  unless  the  defendant  would  promise  to  pay  him,  which 
he  did,  it  was  held  that  the  contract  was  within  the  statute,  for  the  con- 
sideration related  mei'ely  to  the  performance  of  the  antecedent  contract: 
Puckett  V.  Bates,  4  Ala.  390. 


I 


GUARANTIES.  102 

agent,  in  selling  for  a  principal,  should  tnke  unusual 
care  in  selecting  the  customers,  and  by  assuming  re- 


But  where  there  is  some  new  and  original  consideration  of  benefit  or 
harm  moving  between  the  new  contracting  parties,  it  is  well  settled  that 
the  case  is  not  within  the  statute  :  Leonard  v.  Vredenburgh,  supra  ;  as 
where  a  promise  to  pay  an  existing  debt  is  made  in  consideration  of  pro- 
perty placed  by  the  defendant  in  the  hands  of  the  party  thus  promising: 
Hilton  V.  Dinsmore,  21  Me.  410  ;  Todd  v.  Tobey,  29  Ibid.  219 ;  Olmstead 
V.  Greenly,  18  Johns.  12  ;  Elwood  v.  Monk,  5  Wend.  235  ;  Hindman  v. 
Langford,  3  Strobh.  207  ;  Lee  v.  Fontaine,  10  Ala.  755  ;  Hall  v.  Rogers, 

7  Humph.  536  ;  or  where  the  party  to  whom  the  promise  is  made  relin- 
•  quishes  a  levy  on  the  goods  of  the  d&btor :  Williams  v.  Leper,  3  Burr. 

1886  ;  Castlingw.  Aubert,  2  East  325  :  Marcein  v.  Mack,  10  Wend.  461 ; 
Farley  v.  Cleveland,  4  Cow.  432  ;  Tindall  v.  Touchberry,  3  Strobh.  177  ; 
Dunlap  V.  Thorne,  1  Rich.  213  ;  (though  two  late  cases  in  New  York 
and  one  in  Massachusetts,  Barker  v.  Ducklin,  2  Denio  45  ;  Kingsley  v. 
Balcombe,  4  Barb.  S.  C.  131  •,  and  Nelson  o.  Boynton,  3  Mete.  396,  seem 
to  hold,  in  opposition  to  the  prior  authorities  in  the  former  State,  that 
the  consideration  must  always  consist  in  an  advantage  to  the  debtor  or 
the  promisor,  and  that  a  detriment  to  the  promisee  will  not  take  the 
case  out  of  the  statute.) 

It  has  been  held  in  England,  and  in  several  of  our  States,  that  a  pro- 
m'ise  to  indemnify  the  guarantor  against  any  loss  in  consequence  of  his 
undertaking,  is  not  within  the  statute,  on  the  ground  that  the  promise 
is  not  that  another  shall  perform  that  which  he  has  undertaken,  but  that 
the  promisee  shall  not  lose  by  the  engagement  into  which  he  has 
entered  :  Thomas  v.  Cook,  8  Barn.  &  Cress.  728 ;  Chapin  v.  Merrill, 
4  Wend.  657  ;  Chapin  v.  Lapham,  20  Pick.  467  ;  Peck  v.  Thompson,  15 
A^erm.  637  ;  Holmes  v.  Knight,  10  N.  H.  175;  Lucas  v.  Chamberlain, 

8  B.  Mon.  276  ;  Doane  v.  Newman,  10  Mo.  69 :  Jones  i\  Shorter, 
1  Kelly  294  ;  but  the  more  recent  cases  in  England  and  in  New  York 
have  not  acknowledged  this  reasoning  as  satisfactory,  "  for  every  pro- 
mise to  become  answerable  for  the  debt  or  default  of  another  may  Ije 
shaped  as  an  indemnity  :"  Green  v.  Cresswell,  10  Ad.  &  Ellis  (37  E.  C. 
L.  R.)  453;  Staats  v.  Ilowland,  4  Denio  559;  Kingsley  v.  Balcombe, 
4  Barb.  S.  C.  131  ;  and  the  same  view  was  taken  in  Draughn  v.  Bun- 
ting, 9  Ired.  10. 

The  fourth  section  of  the  Statute  of  Frauds  has  not  been  re-enacted  in 
Pennsylvania,  and  the  law  of  that  State  is  therefore  unembarrassed  by 
the  distinctions  to  which  it  has  given  rise,  nor  is  it  believed  that  its  ab- 
sence has,  to  any  great  extent,  occasioned  the  mischief  which  it  waS  the 
object  of  tlie  statute  to  prevent.     The  student  may  further  profitably 


SMITH  S    LAW   OF   CONTRACTS. 


[*103] 


sponsibility  for  their  solvency  should  preclude 
all  ^question  of  negligence  on  his  part,  as  where 


direct  his  attention  on  this  subject  to  the  note  to  Birkmyr  v.  Darnell,  in 
]  Smith's  Lead.  Cases  322,  already  referred  to. — r. 

As  before  stated,  an  Act  of  Assembly  of  Pennsylvania,  of  1855.  has 
re-enacted  so  much  of  the  4th  sect,  of  the  Statute  of  Frauds  as  relates  to 
the  subject  of  this  note. 

Although  it  is  difficult,  perhaps  impossible,  to  reconcile  all  the  deci- 
sions on  the  construction  of  the  fourth  section  of  the  Statute  of  Frauds 
as  to  what  is  an  original  and  what  a  collateral  undertaking,  the  strong 
current  of  the  authorities  is  that  if  the  party  to  whom  the  consideration 
moves  becomes  personally  liable  for  the  payment  of  the  debt,  the  en- 
gagement of  any  other  person,  though  made  at  the  same  time  and  upon  " 
the  same  consideration,  is  a  promise  to  pay  the  debt  of  another  within 
the  statute  :  1  Smith's  Leading  Cas.  381,  American  note  ;  Hitfield  v. 
Dow,  3  Dutch.  440;  Rogers  v.  Kneeland,  13  Wend,  114;  Aldrich  v. 
Jewell,  12  Verm.  125;  Cropper  v.  Pittman,  13  Md.  190;  "Walker  v. 
Richards,  39  N.  H.  259  ;  Carville  v.  Crane,  5  Hill  483  ;  Hall  v.  Farmer, 
5  Denio  484  ;,  Reed  v.  Holcomb,  31  Conn.  360  ;  Boykin  v.  Dohlonde, 
1  Ala.  S.  C.  502.  This  rule  is,  in  fact,  that  stated  by  Serj.  Williams  in 
his  note  to  Forth  v.  Stanton,  1  Wms.  Saund.  211  a,  on  the  authority  of 
Matson  v.  Wharum,  2  T.  R.  80,  where  Butler,  J.,  though  he  declared 
that  if  it  were  a  new  question,  the  leaning  of  his  mind  would  be  the 
other  way,  lays  it  down  broadly  "  that  if  the  person  for  whose  use  the 
goods  are  furnished  be  liable  at  all,  any  other  promise  by  a  third  person 
to  pay  that  debt  must  be  in  writing."  "  But  it  may  be  doubted,"  says 
Judge  Hare  (1  Smith's  Leading  Cases  381),  "whether  any  decision  has 
yet  gone  so  far  as  to  refuse  to  give  eifect  to  a  direct  contract  for  the  pur- 
chase of  goods  merely  because  one  of  the  purchasers  is  a  surety."  The 
provision  of  the  Statute  of  Frauds  was  intended  to  apply  only  to  con- 
tracts strictly  of  suretyship  or  guaranty  ;  and  where  no  credit  is  given 
to  a  third  person,  and  the  consideration. does  not  move  from  him,  and  he 
is  not  to  be  benefited,  the  statute  does  not  apply,  although  such  third 
person  is  primarily  liable  :  Reed  v.  Holcomb,  31  Conn.  360.  The  pro- 
mise of  one  person,  though  in  form  to  arjswer  for  the  debt  of  another,  if 
founded  upon  a  new  and  sufficient  consideration  moving  from  the  cred- 
itor and  promisee  to  the  promisor,  and  beneficial  to  the  latter,  is  not 
Avithin  the  statute  :  Dyer  v.  Gibson,  16  Wis.  557.  The  decisive  question 
is  to  whom  the  credit  was  given  :  Boykin  v.  Dohlonde,  1  Ala.  502.  A 
parol  promise  to  accept  an  order  from  a  debtor  in  favor  of  his  creditor, 
between  whom  and  the  promisor  there  has  been  no  privity,  is  a  pro- 
mise to  pay  the  debt  of  another,  within  the  statute :  Plummer  v.  Lyman, 
49  Me.  229  ;  Richardson  v.  Williams,  Ibid.  558. 


1 


GUARANTIES.  103 

an  agent  sells  on  a  del  credere  commission,  the  under- 
taking so  to  do  need  not  be  in  writing ;  [o)  for,  although 
the  transaction  may  terminate  in  a  liability  to  answer . 
for  the  debt  of  another,  his  paying  that  debt  was 
not  the  immediate  object  of  the  contract  made  with 
him. 

The  default  or  miscarriage  of  another  person  to  which 
the  statute  applies  need  not,  however,  be  a  default  or 
miscarriage  in  payment  of  a  debt  or  in  performing  a 
contract.  Any  duty  imposed  by  the  law,  although  not 
the  performance  of  a  contract,  against  the  breach  of 
which  it  was  the  intention  of 'the  parties  to  secure  and 
be  secured,  must  be  proved  by  writing.  Thus,  where 
one  had  improperty  ridden  another's  horse,  and  thereby 
caused  its  death,  a  promise  by  a  third  person  to  pay  a 
sum  of  money  in  consideration  that  the  owner  of  the 
horse  would  not  sue  the  wrongdoer  was  adjudged  to  be 
unavailable,  because  in  parol  only.(jt>) 

In  the  case  of  Eastwood  v.  Kenyon,  {q)  the  Court  of 
Queen's  Bench  decided  a  completely  new  point  on  the 
construction  of  this  branch  of  the  4th  section.  They 
held  that  the  promise,  which  is  to  be  reduced  into 
writing,  is  a  promise  made  to  the  person  to  whom  the 
original  debtor  is  liable ;  but  '^that  a  promise  p.:q  r..-, 
made  to  the  debtor  himself,  or  even  to  a  third 
person,  to  answer  to  the  creditor,  would  not  require  to 
be  reduced  into  writing,  (r)  In  that  case,  the  plaintiff 
was  liable  to  a  Mr.  Blackburne  on  a  promissory  note, 
and  the  defendant  promised  the  plaintiff  to  discharge  the 
note  to  Blackburne.     The  Court  held,  that  this  was  not 

(o)  Couturier  v.  Hastie,  9  Exch.  102  ;  22  L.  J.  (Exch.)  97,  s.  c. 
{p)  Kirkham  v.  Martyr,  2  B:  &  A.  G13. 
[q]  11  A.  &  E.  (39  E.  C.  L.  R.)  438. 

(r)  Ilargreaves  v.  Parsons,  13  M.  &  W.  561 ;  see  Reader  v.  Kinghain, 
32  L.  J.  (C.  P.)  108. 


104  smith's  law  of  contracts. 

a  promise  to  answer  for  the  debt  of  another  within  the 
meaning  of  the  4th  section  of  the  Statute  of  Frauds.^ 

"  If,"  said  Lord  Denman,  "  the  promise  had  been 
made  to  Blackburne,  doubtless  the  statute  would  have 
applied ;  it  would  have  been  strictly  a  promise  to  an- 
swer for  the  debt  of  another ;  and  the  argument  on  the 
part  of  the  defendant  is,  that  it  is  not  less  the  debt  of 
another  because  the  promise  is  made  to  that  other,  viz., 
the  debtor  and  not  the  creditor,  the  statute  not  having 
in  terms  stated  to  whom  the  promise  contemplated  by  it 
is  to  be  made.  But  upon  consideration,  we  are  of 
opinion,  that  the  statute  applies  only  to  promises  made 
to  the  person  to  wliom  another  is  anstverahle.  We  are  not 
aware  of  any  case  in  which  the  point  has  arisen,  or  in 

^  "  The  statute  applies  only,"  said  Parke,  B.,  in  the  recent  case  of 
Hargreaves  v.  Parsons,  13  M.  &  Wels.  569,  "to  promises  made  to  the 
persons  to  whom  another  is  already,  or  is  to  become  answerable.  It 
must  be  a  promise  to  be  answerable  for  a  debt  of,  or  a  default  in  some 
duty  by  that  other  person  totvards  the  promisee.  This  was  decided,  and 
no  doubt  rightly,  by  the  Court  of  Queen's  Bench,  Eastwood  v.  Kenyon  ;" 
and  the  same  point  had  been  previously  decided  by  the  Supreme  Court 
of  New  York,  in  Johnson  v.  Gilbert,  4  Hill  178. — r.  . 

A  promise  made  to  a  debtor  to  pay  his  debt  to  a  third  person  is  not 
within  the  statute  :*  Goete  v.  Foos,  14  Minn.  265 ;  Britton  v.  Angler,  48 
N.  H.  420  ;  Brown  v.  Brown,  47  Mo.  130  ;  Barker  v.  Bradley,  42  N.  Y. 
316;  Tibbetts  v.  Flanders,  18  N.  H.  284.  When  one  agrees  to  pay  for 
lumber  to  be  furnished  to  another,  this  is  an  original  promise  :  Weyand 
V.  Crichfield,  3  Grant  113;  Backus  v.  Clark,  1  Kan8.  303.  A  parol 
promise  to  pay  the  debt  of  another  is  binding,  where  the  promisor  holds  in 
his  hands  funds,  securities,  or  property  of  the  debtor  :  Fullam  v.  Adams, 
37  Verm.  391 ;  Berry  v.  Dorimus,  1  Vroom  399 ;  Clymer  v.  De  Young, 
.54  Penn.  St.  118  ;  Jennings  v.  Crider,  2  Bush.  322  ;  Wilson  v.  Bevans,  58 
111.  233.  When  a  third  person  has  a  lien  on  property  for  the  payment  of 
his  debt,  and  he  gives  up  his  lien  to  a  person  who  has  an  interest  in  the 
property,  upon  his  promise  to  pay  the  debt,  such  promise  is  not  within 
the  statute  :  Luam  v.  Malone,  34  Ind.  444  ;  Hodges  v.  Strong,  3  Oregon 
18;  Ludwick  v.  Watson,  Ibid.  256;  Davis  v.  Banks,  45  Ga.  138.  A 
promise  by  A.  to  B.  in  consideration  of  property  delivered  to  him  by 
B.,  is,  in  its  relation  to  the  creditors  so  to  be  paid,  within  the  Statute  of 
Frauds:  Clapp  v.  Lawton,  31  Conn.  95. 


GUARANTIES.  104 

which  any  attempt  has  been  made  to  put  that  construc- 
tion upon  the  statute  which  is  now  sought  to  be  estab- 
lished, and  which  we  think  not  to  be  the  true  one." 

It  may  be  observed  here  that  formerly  in  *de-  n^i-i  nc-i 
termining  whether  a  guaranty  had  been  suffi- 
ciently reduced  to  writing  to  satisfy  the  4th  section,  the 
question  which  most  frequently  arose  was  whether  the 
consideration  did  or  did  not  sufficiently  appear  upon  the 
written  instrument.  But  now,  in  the  ca^e  of  promises 
to  answer  for  the  debt,  default,  or  miscarriage  of  ano- 
ther person,  it  is  no  longer  necessary  that  the  consider- 
ation should  appear  upon  the  face  of  the  written  memo- 
randum. By  the  Mercantile  Law  Amendment  Act, 
1856  (19  &  20  Vict.  c.  97),  s.  3,  no  special  promise  to 
be  made  .by  any  person  after  the  passing-  of  this  Act 
(29th  July,  1856)  to  answer  for  the  debt,  default,  or 
miscarriage  of  another  person,  being  in  writing  and 
signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  by  him  thereunto  lawfully  authorized,  shall 
be  deemed  iuA^alid  to  support  an  action,  suit,  or  other 
proceeding  to  charge  the  person  by  whom  such  promise 
shall  have  been  made,  by  reason  only  that  the  consider- 
ation for  such  promise  does  not  appear  in  writing,  or  by 
necessary  inference  from  a  written  document,  (.s)  a 

(s)  Glover  v.  Hackett,  20  L.  -J.  (Ex.)  416  ;  2  H.  &  N.  487. 

(a)  In  Kennaway  v.  Treleavon  the  guarantee  was  thus  worded  :  "  Gen- 
tlemen, I  hereby  guarantee  to  you  the  sum  of  250Z.,  in  case  Mr.  P.  should 
default  in  his  capacity  of  agent  and  traveller  to  you."  It  was  held  that 
the  future  employment  of  Mr.  P.  was  the  consideration  of  this  promise, 
and  that  it  sufficiently  appeared  by  inference  from  the  terms  of  the 
guarantee.  But  the  case  of  Ilaigh  v.  Brooks,  10  A.  &  Ell.  (37  E.  C.  L. 
R.)  309,  is  the  strongest  on  this  point,  and  has  carried  the  latitude  of 
inference  to  its  extreme  length :  it  was  cited  in  the  recent  case  of  Chap- 
man V.  Sutton,  15  Law  Jour,  C.  P.  166 ;  and  the  guarantee  was  thus 
worded :  "  In  consideration  of  your  being  in  advance  to  Messrs.  John 
Lees  &  Co.  in  the  sum  of  10,000Z.,  for  the  purchase  of  cotton,  I  do  hereby 


105  smith's  law  of  contracts. 

There  is  one  thing  which,  though  collateral  to  the 
Law  of  Contracts,  relates  so  peculiarly  to  this   branch 

give  you  my  guarantee  for  that  amount  (say  10,000Z.)  on  their  behalf;"' 
and  it  was  held,  that  whether  the  consideration,  "your  being  in  ad- 
vance^'''' was  or  was  not  a  good  consideration,  depended  upon  the  trans- 
action to  which  the  guarantee  referred.  Lord  Denman,  C.  -J.,  remarks  : 
"  Being  in  advance  does  not  necessarily  mean  that  the  'plaintifF  was  in 
advance  at  the  time  of  the  giving  of  the  guarantee.  It  may  have  been 
intended  as  prospective."  The  judgment  in  the  Exchequer  Chamber 
was  given  upon  this  ground  ;  and  Lord  Abinger,  C.  B.,  said  that  ''  there 
was  in  the  guarantee  an  ambiguity  that  might  be  explained  by  evidence, 
so  as  to  make  it  a  valid  contract." 

Raikesw.  Todd,  above  cited,  is  a  good  illustration  of  an  insufficient  dis- 
closure of  consideration.  The  guarantee  was  thus  expressed  :  "  Gentle- 
men, I  hereby  undertake  to  secure  to  you  the  payment  of  any  sums  of 
money  you  have  advanced,  or  may  hereafter  advance,  to  Messrs.  Davenr 
port  &  Co.,  on  their  account  with  you,  commencing  on  the  1st  Novem- 
ber, 1831,  not  exceeding  2000Z."  Here  it  was  held  that  the  guarantee 
disclosed  no  consideration  for  th.Q  past  advances,  and  was  to  that  extent 
invalid,  but  that  it  was  good  as  regarded  the  future  advances.  Thus,  if 
the  guarantee  consist  of  several  promises,  that  which  is  bad  may  he  re- 
jected without  invalidating  the  remainder  of  the  guarantee.  There  is 
no  practical  difference  between  past  and  future  considerations,  so  long  as 
the  guarantee  discloses  a  sufficient  consideration  in  law  to  support  the 
promise(of  which  see  the  next  lecture).  The  consideration  need  not  be 
co-extensive  with  the  promise.  (See  Raikes  v.  Todd,  per  Ld.  Denman, 
C.  J.)  And  the  courts  will  no  longer  enter  into  the  question  of  adequacy 
of  the  consideration.  See  Chapman  v.  Sutton,  supra,  which  is  the  last 
case  where  the  question  of  the  sufficiency  of  the  inference  .of  a  consid- 
eration has  arisen.  See  also,  Lang  v.  Neville,  6  Jurist  217,  and  John- 
son V.  Nicholls,  1  C.  B.  (50  E.  C.  L.  R.)  251. 

It  is  permissible  to  adduce,  in  evidence  of  the  consideration,  the  writ- 
ten correspondence  between  the  parties,  if  that  correspondence  has  been 
referred  to  in  the  guarantee,  but  not  otherwise :  see  Dol)ell  v.  Hutchin- 
son, 3  Ad.  &  Ell.  (30  E.  C.  L.  R.)  355,  and  Iliggins  v.  Dixon,  U  L.  Jour. 
Q.  B.  329. 

The  rules  which  govern  the  construction  of  contracts,  and  which  will 
be  afterwards  considered,  of  course  apply  to  guarantees.  But  there  is 
one  peculiarity  attaching  to  them,  which  it  may  be  well  to  notice  here. 
Guarantees  are  either  for  definite  or  indefinite  sums  or  periods :  where 
they  are  not  limited  as  to  the  amount  guaranteed,  or,  being  so  limited, 
are  in  either  case  intended  to  affect  future  transactions  until  revoked, 
they  are  termed  continuing  guarantees.     The  distinction  between  these 


GUARANTIES.  105 

of  the  Statute  of  Frauds,  that  I  think  it  ought  to  be 
mentioned.     After   the  4th  section  of  the  Statute  of 

two  classes  of  guarantees  is  one  of  some  nicety,  and  often  of  importance, 
as  regards  the  suiEciency  of  the  consideration,  which  again  frequently 
depends  upon  whether  it  be  past  or  prospective. 

The  only  safe  rule  of  construction  is  to  give  the  words  used  their  natu- 
ral meaning,  taking  into  account  the  attendant  circumstances  which  are 
admissible  in  evidence  to  throw  light  upon  the  intent  of  the  parties  to 
the  instrument.  This  rule  has  been  recently  applied  in  the  case  of  All- 
nutt  V.  Ashendon,  5  M.  &  Gr.  (44  E.  C.  L.  R.)  392,  where  the  guarantee 
was  thus  worded:  "I  hereby  guarantee  Mr.  John  Jennings's  account 
with  you  for  wine  and  spirits,  to  the  amount  of  100?."'  This  was  held 
to  apply  to  an  existing  account;  "  for,''  -said  Tindal,  C.  J.,  "by  account 
I  understand  the  parties  to  mean  some  account  contained  in  some  ledger 
or  book  ;  and  the  case  shows  that  there  was  such  an  account  existing  at 
that  time.  The  natural  construction  of  the  guarantee,  therefore,  is  that 
it  relates  to  that  account."  In  the  subsequent  case  of  Hitchcock  v. 
Ilumfrey,  5  M.  &  Gr.  (44  E.  C.  L.  R.)  559,  the  defendant,  having  guar- 
anteed the  payment  of  goods  to  be  supplied  by  the  plaintiffs  to  A.,  up 
to  the  1st  of  July,  gave,  on  the  9th  of  April,  the  following  additional 
guarantee  :  "  In  consideration  of  your  extending  the  credit  already 
given  to  A.,  and  agreeing  to  draw  upon  him  at  three  months  from  the 
first  of  the  following  month,  for  all  goods  purchased  up  to  the  20th  of 
the  preceding  month,  I  hereby  guarantee  the  payment  of  any  sum  that 
shall  be  due  and  owing  to  you  upon  his  account  for  goods  supplied." 
This  was  held  to  be  a  continuing  guarantee  :  the  words  "  following 
month"  and  "  preceding  month"  being  held  to  have  a  general  applica- 
tion, the  terms  of  the  first  guarantee  being  taken  into  account  in  con- 
struing the  language  of  the  second.  For  other  cases  of  the  construction 
put  on  these  instruments,  see  Mayer  v.  Isaac,  6  M.  &  W.  605  ;  -Jenkins 
V.  Reynolds,  3  B.  &  B.  (7  E.  C.  L.  R.)  14  ;  Allan  v.  Kenning,  9  Bing. 
(23  E.  C.  L.  R.)  618;  Batson  v.  Spearman,  9  A.  &  Ell.  (36  E.  C.  L.  R.) 
298;  Hargreave  v.  Smee,  6  Bing.  (19  E.  C.  L.  R.)  244;  Nicholson  v. 
Paget,  1  C.  &  M.  48  ;  Martin  v.  Wright,  14  Law  Jour.  Q.  B.  142  [since 
reported,  6  Queen's  Bench  (51  E.  C.  L.  R.)  917]  ;  and  Johnson  t'.  Nich- 
olls,  supra.^ 

^  So  a  guarantee,  "  If  D.  wishes  to  take  goods  of  you,  we  are  willing 
to  lend  our  names  as  security  for  any  amount  he  may  wish,"  was  held 
not  to  extend  beyond  the  first  delivery  of  goods  :  Rogers  v.  Warner,  8 
•Johns.  119.  The  same  construction  wa-s  given  in  Aldrich  v.  Iliggins,  16 
S.  &  R.  212,  where  the  words  were:  "  L.  C.  having  a  desire  to  enter 
into  trade  in  a  small  way,  we  hereby  offer  ourselves  as  security  to  any 


105  smith's  law  of  contracts. 

Frauds    had   rendered   verbal    guaranties    unavailable, 

P-=10ri    ^^^^*^^s  upon  the  case  for  fahe  ^representationB^ 

under  circumstances  in  which,  before  the  Act, 

The  cases  turn,  as  remarked  by  the  Lord  Chief  Justice  in  that  of  Mar- 
tin V.  Wright,  on  the  particular  terms  of  each  guarantee,  and  it  is  there- 
fore impossible  to  lay  down  any  less  general  rule  of  construction  than 
that  which  we  have  endeavored  to  give. 

Promises  to  answer  for  tortious  defaults  are  within  the  operation  of 
the  statute,  as  Avell  as  guarantees  of  credit.  Kirkham  v.  Marter,  2  B.  & 
Aid.  613,  is  a  leading  authority  on  this  point.  A.  having  killed  B.'s 
horse,  C.  guarantees  to  B.,  the  owner,  to  answer  for  the  damage  :  this 
was  held  to  be  within  the  statute.  Lord  C.  J.  Abbott  distinguishes  this 
case  from  that  of  Read  v.  Nash,  1  Wils.  305,  but  which  Serjeant  Wil- 
liams thinks  it  overrules :   1  Saund.  211,  c.  n.  1. 

Shares  in  a  joint  stock  company  are  mere  choses  in  action  ;  but  rail- 
way shares,  it  is  submitted,  inasmuch  as  they  give  an  interest  in  land, 
would  fall  under  the  operation  of  the  4th  section. 


gentleman  who  may  feel  disposed  to  give  him  credit  not  exceeding  $700, 
or  anything  less,  as  he  may  think  proper  to  contract ;"  in  White  v.  Reed, 
15  Conn.  457  ;  "  In  any  sum  my  son  G.  may  become  indebted  to  you, 
not  exceeding  $200,  I  will  hold  myself  accountable;"  in  Anderson  v. 
Blakely,  2  W.  &  S.  237  :  "  Mr.  P.  having  informed  me  that  he  is  making 
some  purchases  from  you,  and  that  you  wish  some  reference,  I  would 
say  that  you  might  credit  him  with  perfect  safety,  and  that  anything  he 
might  purchase  from  you  I  will  see  paid  for,"  where  the  court  said  : 
"  There  is  more  reason,  perhaps,  for  giving  a  freer  interpretation  Avhere 
the  sum  is,  as  in  several  of  the  cases,  limited,  because  there  the  party 
intrenches  himself  within  a  certain  amount,  beyond  which  he  can  in  no 
case  be  made  liable.  But  when  there  is  no  restriction  of  the  amount,  the 
guarantee  should  be  carefully  scanned,  to  see  whether  it  justifies  a  party 
in  the  large  construction  contended  for."  And  the  same  view  was  taken 
in  Whitney  v.  Groot,  24  Wend.  82,  upon  the  words :  "  We  consider  I. 
V.  good  for  all  he  may  want  of  you,  and  we  will  sell  him  all  he  reason- 
ably asks  of  us  on  credit,  and  we  will  indemnify  the  same."  On  the 
other  hand,  in  Grant  v,  Risdal,  2  Harr.'  &  Johns.  186,  "  I  will  guarantee 
their  engagements,  should  you  think  it  necessary,  for  any  transaction 
they  may  have  with  your  house,"  was  held  to  be  a  continuing  guarantee 
till  countermanded,  but  the  reasons  for  the  judgment  are  not  reported. 
Instances  of  continuing  guarantees  will  be  found  in  Clark  v.  Burdett,  2 
Hall  197  ;  Massey  v.  Rayner,  22  Pick.  223  ;  Bent  v.  Hartshorne,  1  Mete. 
24;  Douglass  v.  Reynolds,  7  Pet.  113  ;  Lawrence  v.  M'Calmont,  2  How. 
(S.  C.)  426.     As,  for  example,  "  Mr.  R.  is  about  to  establish  a  store  of 


'  GUARANTIES.  106 

the  transaction  would  have  been  looked   on  as  one  of 
guaranty,  were  often  brought.     For  instance,  if  A.  went 


books  and  stationery.  He  will  commence  on  a  limited  scale  with  the 
intention  of  enlarging  the  business  next  spring.  He  wishes  to  purchase 
school-books,  &c.,  on  a  credit  of  four  or  six  months,  and  paper,  &c.,  on 
commission.  For  the  faithful  management  of  the  business,  and  punc- 
tual fulfilment  of  contracts  relating  to  it,  the  subscriber  will  hold  him- 
self responsible  :"  Massey  V.  Rayner. 

■  While  it  is  undoubtedly  true  that  each  case  must  depend  on  the  par- 
ticular terms  of  the  guarantee,  aided  by  the  attendant  circumstances  of 
the  parties,  it  has  been  often  suggested,  if  not  held,  that  the  language 
should  be  very  strong  to  justify  a  court  in  holding  a  guarantee  to  be  a 
continuing  one,  until  notice  given  to  thecontrary  :  per  Story,  J.,  in  Cre- 
mer  v.  Higginson,  1  Mass.  336 :  Nicholson  v.  Paget,  1  Crompt.  &  Mees. 
48  ;  while,  on  the  other  hand,  it  has  been  more  repeatedly  held  that  the 
ordinary  maxim,  that  the  words  of  the  instrument  should  be  "taken  most 
strongly  against  the  party  using  them,  fully  applied  to  guarantees : 
Mason  v.  Pritchard,  12  East  227  ;  Merle  v.  Wells,  2  Camp.  413  ;  Drum- 
mond  V.  Preestman,  15  Wheat.  515;  Douglass  v.  Reynolds,  supra; 
Mayer  v.  Isaac,  6  Mees.  &  Wels.  610;  where  the  remarks  in  Nicholson 
V.  Paget,  supra,  are  disapproved. 

There  is  an  important  class  of  cases  upon  the  subject  of  notice  to  the 
guarantor,  the  doctrine  of  which  may  be  said  to  be  almost  peculiarly 
American.  It  is  a  rule  of  the  common  law,  that  where  a  party  stipulates 
to  do  a  certain  thing  in  a  certain  specific  event,  which  may  become 
known  to  him,  or  with  which  he  may  make  himself  acquainted,  he  is 
not  entitled  to  any  notice,  unless  he  stipulates  for  it :  but  when  it  is  to 
do  a  thing  which  lies  in  the  peculiar  knowledge  of  the  opposite  party, 
then  notice  ought  to  be  given  him :  Vyze  v.  Wakefield,  6  M.  &  Wels. 
452.  But  in  the  case  of  Russell  v.  Clark,  7  Cranch  69,  and  Edmundson 
V.  Drake,  5  Pet.  624,  this  principle  was,  in  its  application  to  mercantile 
guarantees,  thought  rather  an  obligation  of  commercial  than  of  the 
common  law,  and  in  the  subsequent  case  of  Douglass  v.  Reynolds,  7  Ibid. 
113,  which  is  a  leading  case  upon  the  subject,  this  view  was  directly 
sanctioned,  and  it  was  held  that  notice  of  the  acceptance  of  a  guarantee, 
and  of  the  giving  credit  under  it,  must  be  given  to  the  guarantor  imme- 
diately or  within  reasonable  time  (unless,  indeed,  in  the  case  of  a  con- 
tinuing guarantee,  when  it  would  not  be  necessary  to  give  notice  of  each 
successive  transaction  as  it  arose,  but  after  the  transactions  were  closed, 
notice  of  the  whole  amount  for  which  the  guarantor  was 'held  responsi- 
ble should  be  given  to  him  within  a  reasonable  time)  ;  and  further,  that 
demand  of  performance  must  be  made  upon  the  principal,  and  imme- 
diate notice  of  his  default  given  to  the  guarantor,  and  that  a  failure  so 


106  smith's  law  of  contracts. 

to  a  tradesman  to  persuade  him  to  supply  goods  to  B., 
by  assuring  him  that  he  should  be  paid  for  them,  the 

to  do  would  discharge  the  latter,  unless  it  be  clearly  inade  out  that  under 
the  circumstances  of  the  case  no  injury  had  resulted  to  him  from  the 
neglect.  This  rule  has  been  frequently  affirmed  by  the  Supreme  Court 
of  the  United  States,  and  adopted  in  most  of  the  States,  and  the  student 
will  find  the  authorities  collected  and  their  distinctions  classified  in  the 
first  volume  of  American  Leading  Cases,  p.  50,  note  to  Douglass  v.  Rey- 
nolds. Some  of  the  authorities  where  the  subject  is  most  elaborately 
discussed,  are  Craft  v.  Isham,  13  Conn.  28  ;  Wildes  v.  Savage,  1  Story 
22;  Howe  V.  Nickels,  22  Me.  175.  In  many  of  the  cases  notice  would 
have  been  necessary  under  the  common  law  rule  referred  to,  but  the 
authorities  have  based  them  upon  the  principles  of  commercial  law. 

In  New  York,  however,  dissent  from  this  doctrine  of  notice  has  been 
expressed  in  Douglass  v.  Howland,  24  Wend.  35  ;  Whitney  v.  Groot, 
Ibid.  82 ;  Smith  v.  Dann,  6  Hill  543  ;  Curtis  v.  Brown,  2  Barb.  51  ; 
Union  Bank  v.  Coster,  3  Comst.  203.  In  the  first  of  these  cases  the  de- 
fendant's agreement  was  such  (viz.  that  one  B.  should  fiiithfully  perform 
an  agreement  with  the  plaintiff  to  account  and  pay  over  all  such  sums 
as  should  be  found  due  from  him  to  the  latter),  as  would  not  have  re- 
quired notice  under  any  circumstances,  as  the  events  to  which  it  referred, 
though  prospective,  were  not  dependent  on  the  option  of  the  plaintiff; 
but  the  court  held  that  as  a  general  rule,  when  nothing  on  the  face  of 
the  guarantee  required  notice,  the  court  could  not  exact  one  as  a  condi- 
tion precedent  to  a  recovery.  In  the  opinion  of  the  annotator  referred 
to,  the  weight  of  reasoning  lies  between  these  two  classes  of  cases,  and 
points  to  the  following  rule  :  that  in  all  cases  in  which  the  contract  of  a 
guarantor  does  not  determine  precisely  the  nature  and  the  amount  of 
liability  for  which  he  is  willing  to  make  himself  responsible,  and  leaves 
either  or  both  these  points  to  the  choice  of  the  person  who  seeks  to  en- 
force the  guarantee,  the  latter  is  bound  to  give  notice  of  the  mode  in 
which  he  has  exercised  the  election  thus  accorded  him,  and  cannot  com- 
plain that  there  has  been  a  default  on  the  part  of  the  defendant  before 
giving  him  precise  information  as  to  what  is  necessary  to  be  done  in  order 
to  fulfil  his  engagements ;  but  that  when  the  defendant's  contract, 
instead  of  leaving  open  the  cause  of  action  upon  which  he  is  willing  to 
make  himself  liable,  points  out  some  mode  of  performauce,  in  considera- 
tion of  which  he  is  willing  to  be  bound,  either  directly  or  on  behalf  of 
another  person,  an  action  will  lie  without  notice  as  soon  as  the  consider- 
ation has  been  performed. 

Notwithstanding  a  few  decisions  or  dicta  to  the  contrary,  2  M'Lean 
21,  Ibid.  369,  Ibid.  557,  the  weight  of  authority  has  unquestionably  set- 
tled, that  however  necessary  notice  may  be  to  a  recovery,  it  need  not  be 


GUAKANTIES.  106 

tradesman,  in  case  of  B.'s  default,  could  not  bring  an 
action  of  assumpsit  as  upon  a  guaranty,  because  there 
uas  no  "written  memorandum  of  what  passed ;  but  he 
brought  an  action  on  the  case,  in  which  he  accused  A. 


averred  in  the  declaration  :  Gibbs  v.  Cannon,  9  S.  &  R.  198 ;  Rhett  v. 
Poe,  2  How.  485;  Salisbury  v.  Hale,  12  Pick.  424;  Dole  v.  Young,  24 
H>id.  25U  ;  Wildes  v.  Savage,  1  Story  22;  inasmuch  as  the  want  of  notice 
will  only  operate  as  a  defence  to  the  guarantor  where  it  has  resulted  in 
some  actual  injury  to  him,  and  is  diflFerent  in  its  operation  in  this  respect 
from  the  notice  required  to  charge  an  endorser  of  a  negotiable  instrument, 
in  which  case  the  rule  is  inflexible  and  open  to  no  inquiry  whether  notice 
could  have  availed  him  or  not,  as  in  either  case  the  endorser  is  absolutely 
discharged. 

Before  leaving  the  subject  of  guaranties,  it  may  be  remarked  that  in 
Pennsylvania,  a  peculiar  signification  has  been  given  to  the  word  guaran- 
tee, as  distinguished  from  other  words  of  similar  import,  such  as  "  agree 
to  become  answerable,"  or  the  like,  and  a  guarantee  of  a  debt  due  by 
another,  merely  imports  an  undertaking  that  the  debt  is  susceptible  of 
collection,  and  the  guarantor  is  not  liable  until  the  insolvency  of  the 
principal  is  shown.  Such  a  course  of  decision,  though  it  has  been 
sometimes  regretted,  is  firmly  established  by  a  class  of  cases :  Chapman 
V.  Johnson,  3  P.  R.  18  ;  Isett  v.  Hoge,  2  Watts  128 ;  Snively  v.  Ekel, 
1  W.  &  S.  204 ;  Parker  v.  Culbertson,  1  Wall.  Jr.  161.— r. 

A  guarantor  may  specify  in  the  letter  of  credit  the  terms  on  which  he 
will  be  bound  ;  and  if  these  terms  are  complied  with  he  is  bound,  though 
the  law  would  have  prescribed  the  performance  of  other  acts  by  the  party 
seeking  to  subject  him  on  his  guarantee.  Therefore  a  guarantor  under- 
taking to  pay  on  receiving  reasonable  notice  of  the  failure  of  the  prin- 
cipal debtor  to  pay,  dispenses  with  notice  of  the  acceptance  of  the 
guarantee,  even  if  the  law  would  have  required  such  notice:  Wadsworth 
V.  Allen,  8  Gratt.  174.  See  also  Baker  v.  Rand,  13  Barb.  152;  Spicer 
V.  Norton,  Ibid.  542;  Bickford  v.  Gibbs,  8  Cush,  154;  Klein  v.  Cur- 
rier, 14  111.  237  ;  Farmers  and  Mechanics'  Bank  v.  Kercheval,  2  Mich. 
504. 

As  to  the  necessity  of  notice  of  acceptance  of  the  guarantee,  see 
Unangst  v.  Ilibler,  26  Penna.  St.  150;  Lawton  v.  Maner,  9  Rich.  (Law), 
335 ;  Yancy  v.  Brown,  3  Sneed*  89 ;  M'Dougal  v.  Calef,  34  N.  H.  534 ; 
Kellogg  V.  Stockton,  29  Penna.  St.  460 ;  Cahuzac  v.  Samini,  29  Ala. 
288;  Bright  v.  M'Knight,  1  Sneed  158  ;  Wardlaw  v.  Harrison,  11  Rich. 
(Law)  626  ;  Paige  v.  Parker,  8  Gray  211  ;  ^I'Naughton  v.  Conkling,  9 
Wis.  316  ;  Powers  v.  Bumcratz,  12  Ohio  (N.  S.)  273  ;  Maynard  v.  Morse, 
36  Term.  617. 


106  smith's  law  of  contracts. 

of  having  knowingly  deceived  him  as  to  B.'s  ability  to 
pay :  and  if  the  jury  thought  this  case  made  out,  he 
succeeded  in  his  action,  and  received  pretty  nearly  the 
same  sum  as  he  would  have  done  if  there  had  been  a 
guaranty.  However,  as  this  was  inconsistent  with  the 
object  of  the  Statute  of  Frauds,  the  legislature  put  an 
end  to  it  by  enacting,  in  statute  9  Geo.  IV.  c.  14,  s.  6, 
commonly  called  Lord  Tenterden's  Act  (which,  however, 
is  not  confined  to  cases  within  the  Statute  of  Frauds), (^) 
"  that  no  action  shall  be  brought  whereby  to  charge  any 
person  upon  or  by  reason  of  any  representation  or  assur- 
ance made  or  given  concerning  or  relating  to  the  charac- 
ter, conduct,  credit,  ability,  trade,  or  dealings  of  any 
other  person,  to  the  intent  or  purpose  that  such  other 
person  may  obtain  credit,  money  or  goods  upon,(w) 
r*1  t)^l  unless  such  representation  *or  assurance  be 
made  in  writing,  signed  by  the  party  to  be 
charged  therewith." 

A  trader  being  in  bad  circumstances  and  indebted  to 
the  defendant,  applied  to  plaintiff  for  goods  on  credit, 
and  referred  him  to  defendant  for  her  character ;  in  fact, 
she  had  dealt  with  defendant  to  a  considerable  amount 
but  had  fallen  into  arrear,  and  defendant  had  ceased  to 
supply  her  for  some  time,  but  had  gone  on  again  upon 
her  undertaking  to  discharge  her  arrears  at  so  much  per 
week.  The  plaintiff  inquired  of  the  defendant's,  shop- 
man as  to  her  credit,  and  defendant,  on  being  referred 
to  by  the  shopman,  said,  that  he  might  give  her  a  fair 
character,  which  the  shopman  repeated  to  the  plaintiff, 
and  he  thereupon  trusted  her  with  goods.     These  goods 

{t)  Devaux  v.  Steinkeller,  per  Tindal,  C.  J.,  6  Bing.  N.  C.  (37  E.  C. 
L.  R.)  88. 

[u]  It  was  probably  intended  that  the  words  "  money  or  goods  upon,'" 
which  were  added  in  the  Committee  upon  the  Bill,  should  precede  the 
word  "  credit."' 


GUARANTIES.  107 

she  sold,  and  paid  defendant  with  the  proceeds,  but 
never  paid  the  plaintiff.  The  Court  of  King's  Bench 
decided  that  evidence  of  the  defendant's  representation 
through  his  shopman  to  the  plaintiff  could  not  be  admit- 
ted, not  having  been  made  in  writing,  (z;) 

It  has  since  been  considered  in  the  construction  of 
this  statute,  that  a  representation  by  a  person,  that  the 
title-deeds  of  an  estate  which  A.  had  bought  were  in 
that  person's  possession,  that  nothing  could  be  done 
with  the  estate  without  his  knowledge,  and  conse- 
quently that  the  plaintiff  would  be  *safe  in  r:::jAc-| 
lending  money  to  A.,  was  a  representation  made 
concerning  A.'s  ability ;  and,  therefore,  as  it  was  not  in 
writing,  the  defendant  was  not  liable  on  account  of  its 
falsehood.  (:?;)  It  has  also  been  considered  that  a  repre- 
sentation by  a  partner  as  to  the  credit  of  a  firm  in  which 
he  was  a  partner  is  a  representation  as  to  the  credit  of 
another  person  within  the  meaning  of  the  statute.  (^) 

In  Wade  v.  Tatton,  which  was  decided  in  the  Court 
of  Exchequer  Chamber,  that  Court  determined  that 
where  a  written  representation  is  made  as  to  the  char- 
acter of  a  third  person,  and  also  a  parol  representation 
of  the  character  of  the  same  person,  and  the  person  de- 
ceived thereby  trusted  to  both  representations,  and 
would  not  have  trusted  to  either  of  them  alone,  that  the 
'  party  deceived  thereby  may  maintain  an  action — a 
material  part  of  the  representation  having  been  made  in 
writing.  (;s) 

The  effect  of  this  section  [of  Lord  Tenterden's  Act] 
was  also  much  discussed  in  the  areat  case  of  Lyde  v. 


O' 


(»;)  Haslock  v.  Fer^ruson,  7  A.  &  E.  (34  E.  C.  L.  R.)  86. 
[x)  Swan  V.  Phillips,  8  A.  &  E.  (35  E.  C.  L.  R.)  457. 
(y)  Devaux  v.  Steinkeller,  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  84. 
(z)  25  L.  J.  (C.  P.)  240;  18  C.  B.'  (86  E..C.  L.  R.)  371. 


108  smith's  law  of  contracts. 

Barnard,  («)  in  which  the  Judges  of  the  Court  of  Ex- 
chequer differed,  but  the  judgments  in  which  will  repay 
a  very  attentive  perusal. 

It  has  been  held  that,  although  under  the  aboA'^e  sec- 
r*10Q1  ^^^^  ^^  Lord  Tenterden's  Act,  the  signature_of^ 
"'an  agent  generally  is  not  sufficient,  yet  that  in 
the  case  of XbahKiig  company  formed  under  7  Geo.  IV., 
c.  40,  the  signature  of  the  manager  is  the  signature,  not 
merely  of  an  agent,  but  of  the  company  itself,  and  there- 
fore "  the  signature  of  the  party  to  be  charged"  within 
that  section.  ((^)  In  the  case  just  cited,  it  did  not  appear 
that  there  was  any  other  mode  of  signing  by  the  bank 
except  by  the  manager. 

The  third  of  the  species  of  contracts  enumerated  by  the 
4th  section,  and  required  by  it  to  be  evidenced  in  writing 
is — an?/  agreement  made  in  consideration  of  marriage. 

It  certainly  would  strike  any  one  (except,  perhaps,  a 
lawyer)  that  a  promise  by  a  woman  to  marry  a  man,  in 
consideration  of  his  promise  to  marry  her,  was  an  agree- 
ment made  in  consideration  of  marriage.  And,  indeed, 
in  PHilpott  V.  Wallet,  (c)  it  was  expressly  so  decided. 
That  was  an  action  of  assumpsit  for  breach  of  promise  of 
marriage,  in  which  the  jury  found  the  promise,  and  found 
also  that  it  had  not  been  reduced  to  writing.  And  it 
was  objected,  "  that  this  is  no  promise  within  the  Stat- 
ute of  Frauds  and  Perjuries,  for  that  must  be  intended 
of  promises  to  pay  money  upon  marriages,  and  not  of 
promises  to  marry."  But  the  report  proceeds  to  say 
that  to  this  it  was  answered  and  resolved,  that  this  pro- 
pinioi  liaise  is  '"•'directly  within  the  words  of  the  stat- 
ute, and  not  out  of  the  intent,  because  the  pro- 
fa)  1  M.  &  W.  101. 

(6)  Swift  V.  Winterbotham,  L.  R.  8  Q.  B.  244 ;  42  L.  J.  (Q.  B.)  HI. 
(c)  3  Levinz  65. 


MARRIAGE    CONTRACTS.  110 

mise  is,  that  in  consideration  the  one  would  many  the 
other,  the  other  would  marry  him.  However,  as  Lord 
Coke  has  observed,  the  reason  of  t|ie  law  is  not  always 
like  a  man's  natural  reason ;  and,  accordingly,  the  case 
of  Philpott  V.  Wallet  has  been  overruled  by  Cork  v. 
Baker,  (c/)  and  it  has  been  decided  by  that  case,  and 
Harrison  v.  Cage,  (6)  that  an  agreement  between  two 
persons  to  marry  is  not  an  agreement  in  consideration 
of  marriage,  within  the  meaning  of  this  enactment,  but 
that  these  terms  are  confined  to  promises  to  do  some- 
thing in  consideration  of  marriage,  other  than  the  per- 
formance of  the  contract  of  marriage  itself.^ 

Thus  a  promise  made  by  the  intended  husband  to  the 
.intended  wife  before  marriage  to  settle  her  personal 
property  on  her,  will  not  be  carried  into  effect  by  the 
Court  of  Chancery  unless  evidenced  by  writing.  (/)  But 
if  so  evidenced  it  would  be  otherwise,  although  the 
writing  acknowledged  the  promise  to  have  been  made 
before  the  wedding,  but  it  was,  in  fact,  made  after.  (^) 
And  where  a  promise  was  made  by  a  testator  to  the 
intended  husband  of  his  daughter,  previous  to  her  mar- 
riage, that  she  should  share  in  the  testator's  r;::i-|-i-i 
property  ^equally  With  the  rest  of  his  children, 
and  the  daughter  married  the  plaintiff,  and  died  in  the 
testator's  lifetime,  leaving  issue,  but  the  testator,  who 
had  not  given  anything  to  the  daughter  on  her  marriage 
gave  by  his  will  a  legacy  to  one  surviving  daughter,  and 

(d)  1  Str.  34. 

(e)  1  Ld.  Kayrn.  386. 

(/)  Countess  of  Montacute  v.  Maxwell,  1  Str.  236;  1  P.  Wms.  618  ; 
Tweedle  v.  Atkinson,  30  L.  J.  (Q.  B.)  265. 

(gr)  Ibid.  ;  s.  v.  Randall  v.  Morgan,  12  Ves.  73. 

^  The  doctrine  of  these  cases  was  affirmed  in  Ogden  v.  Ogden,  1  Bland. 
287,  and  Clark  v.  Pendleton,  20  Conn.  508.— r. 
9 


4 

111  smith's  law  of  contracts. 

bequeathed  the  residue  of  his  property  to  another,  leav- 
ing nothing  to  his  deceased  daughter  or  to  the  plaintiff, 
her  husband,  it  was  held  that  the  promise  of  the  testator 
to  the  plaintiff,  although  verbal  only,  yet  being  repeated 
in  terms  in  an  affidavit  made  by  the  testator  in  a  former 
legal  proceeding  against  the  plaintiff,  the  affidavit  was 
a  sufficient  compliance  with  the  requirements  of  the 
statute,  (/i) 

We  now  come  to  the  fourth  class  of  promises,  enu- 
merated by  the  4th  section,  viz. — any  contract,  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  con- 
cerning them. 

These  words,  you  will  observe,  are  exceedingly  large, 
comprehending  not  merely  an  interest  in  land  itself,  but 
any  interest  concerning  '\i}  And  the  main  questions 
which  have  arisen  have  accordingly  been — Whether 
particular  contracts,  falling  very  near  the  line,  do  or  do 
not  concern  land,  so  as  to  fall  within  these  terms.  Thus 
it  was  held  in  Crosby  v.  Wadsworth(/),  that  an  agree- 
ment conferring  an  exclusive  right  to  the  vesture  of 
P1 1 9-1  land  *(/.  e.,  a  growing  crop  of  mowing  grass), 
during  a  limited  time  and  for  given  purposes,  is 
a  contract  for  sale  of  an  interest  in,  or  at  least  concerning 
lands ;  and  for  the  non-performance  of  which,  if  made 
by  parol,  an  action  cannot  be  maintained.  In  Tyler  v. 
Bennett,  (/)  an  agreement  that  the  plaintiff*  should  be 
allowed  to  take  water  from  a  particular  well  was  held  to 

(7t)  Bai-kworth  v.  Young,  26  L.  J.  (C,h.)  153 ;  Hammersley  v.  Da  Biel, 
12C.  &Fin.  45. 

{%)  6  East  602 ;  Carrington  v.  Roots,  2  M.  &  W.  248. 
Xj)  5  A.  &  E.  (31  E.  C.  L.  R.)  377. 

^  An  oral  promise  to  pay  presently  the  price  of  lands  conveyed  at  the 
time  to  the  promisor  is  not  within  the  statute :  Basford  v.  Pearson,  9 
Allen  387  ;  Holland  v.  Hoyt,  14  Mich.  238 ;  Calhoun  v.  Atchison,  4 
Bush  261. 


CONTRACTS    FOR    THE    SALE    OF    LANDS.  112 

concern  land,  and  to  require  a  writing.^  On  the  other 
hand,  in  Evans  v.  Roberts,  (^'•)  where  the  plaintiff  had 
sold  to  the  defendant  a  growing  crop  of  potatoes,  this 
was  decided  not  to  be  a  sale  of  any  interest  in  or  concern- 
ing land.  It  was  contended,  that,  as  the  potatoes  were 
deriving  nourishment  and  support  from  the  soil,  and 
would  have  passed  as  part  of  the  land  by  a  conveyance 
of  it,  an  interest  in  them  must  at  all  events  be  taken  to 
concern  land ;  and  great  reliance  w^as  placed  on  the  de- 
cision in  Crosby  v.  Wadsworth,  which  I  have  already 
cited — where  a  growing  crop  of  grass  was  sold  and  was 
to  be  mowed  by  the  vendee,  and  the  sale  was  held  to 
fall  within  the  statute,  and  to  require  a  writing.  How- 
ever, the  Court  held  that  the  case  was  distinguishable. 
"  Although,"  said  Mr.  Justice  Holroyd,  "  the  vendee 
might  have  had  an  incidental  right  by  virtue  of  his  con- 

(/.■)  5  B.  &C.  (11  E.  C.  L.  R.)  8-29. 

^  So  of  a  right  of  permanently  overflowing  the  land  of  another  :  Harris 
V.  Miller,  1  Meigs  150,  or  erecting  a  permanent  mill-dam  :  Stevens  i\ 
Stevens,  11  Mete.  251  ;  Thompson  v.  Gregory,  4  Johns.  81. — r. 

So  a  right  to  dig  and  carry  away  ore :  Riddle  v.  Brown,  20  Ala.  412 ; 
Briles  v.  Pace,  13  Ired.  279.  An  agreement  not  to  claim  damages  for 
flowing  one's  land,  if  the  other  party  will  erect  a  dam  and  mill,  is  not 
the  conferring  of  any  right,  interest  or  easement  in  land,  but  only  a 
waiver  of  claim  for  pecuniary  damages,  and  need  not  be  in  writing : 
Smith  V.  Goulding,  6  Gush.  154.  The  right  to  overflow  another's  land 
by  a  mill-dam  is  an  interest  in  land  which  cannot  pass  by  parol :  Carter 
V.  Harlan,  6  Md.  20.  A  license  by  the  owner  of  a  fee  of  a  highway  : 
Brown  i\  Galley,  Hill  &  Denio  308 ;  Hall  v.  M'Leod,  2  Mete.  (Ky.)  98.  So 
a  license  to  flow  lands  :  French  v.  Owen,  2  Wis.  250.  So  a  right  to  main- 
tain a  dam  on  the  land  of  another :  Moulton  v.  Faught,  41  Me.  298  ;  Tram- 
mell  V.  Trammell,  11  Rich.  (Law)  471.  No  deed  or  other  writing  is 
necessary  to  convey  the  interest  of  the  owner  of  a  building  standing  on 
another's  land :  Keyser  v.  School  District,  35  N.  II.  477.  A  license  to 
insert  beams  in  the  wall  of  a  house  is  not  within  the  statute :  M'Larney 
V.  Pettigrew,  3  E.  D.  Smith  111.  So  an  agreement  to  take  a  certain 
annual  compensation  for  damages  occasioned  by  flowing  land  by  a  mill- 
dam  :  Short  V.  Woodward,  13  Gray  86.  So  the  grant  of  a  right  to  float 
logs  on  a  stream  :  Rhodes  v.  Otis,  33  Ala.  578. 


112  smith's  law  of  contracts. 

tract  to  some  benefit  from  the  land  while  the  potatoes 
were  arriving  at  maturity,  yet  I  think  he  had  not  an 
P^-|  -.  0-1  interest  in  *the  land  within  the  meaning  of  this 
statute  :  he  clearly  had  no  interest  so  as  to  en- 
title him  to  the  possession  for  any  period,  however 
limited,  for  he  was  not  to  raise  the  potatoes.  Besides, 
this  is  not  a  contract  for  the  sale  of  the  produce  of  any 
specific  part  of  the  land,  but  of  the  produce  of  a  cover 
of  land.  The  plaintiff  did  not  acquire  by  the  contract 
any  interest  in  any  specific  portion  of  the  land ;  the 
contract  only  binds  the  vendor  to  sell  and  deliver  the 
potatoes  at  a  future  time  at  the  request  of  the  buyer, 
and  he  was  to  take  them  aAvay." 

A^^ith  regard  to  this  case,  it  is  worth  while  to  observe, 
that  though,  according  to  the  decision  of  the  Court,  the 
contract  did  not  fall  within  the  4th  section,  as  the  sale 
of  an  interest  in  or  concerning  lands,  yet  it  would 
clearly  fall  within  the  17th,  to  which,  before  the  conclu- 
sion of  these  Lectures,  I  shall  have  occasion  to  advert, 
as  being  a  sale  of  goods  and  chattels ;  but  no  point  arose 
upon  that  section,  because  one  shilling  had  been  paid  as 
earnest  money ^  which  is  one  of  the  modes  of  satisfying 
the  provisions  of  the  17th  section. 

The  result  of  these  cases,  and  of  the  many  others 
which  have  been  decided  upon  the  subject,  is  thus  stated 
r*1 1 4-1  ^^  Williams'  Saunders  :  (/)  It  appears  to  be  *now 
settled,  that  with  respect  to  emblements  or 
fructus  industriales  (^.  e.,  thC'  corn  and  other  growth  of 
the  earth,  which  are  produced,  not  spontaneously,  but 
by  labor  and  industry),  a  contract  for  the  sale  of  them 
while  growing,  whether  they  are  in  a  state  of  maturity, 

(Z)  Duppa  V.  Mayo,  1  Wms.  Saund.  277  c,  n.  (/).  A  similar  and  very 
clear  view  of  this  subject  is  also  taken  by  Lord  St.  Leonards — see  Con- 
cise View  of  Law  of  V.  &  P.  75,  ed.  1851. 


CONTRACTS    FOR   THE    SALE    OF   LANDS.  114 

or  whether  they  have  still  to  derive  nutriment  from  the 
land  in  order  to  bring  them  to  that  state,  is  not  a  con- 
tract for  the  sale  of  any  interest  in  land,  but  merely  for 
the  sale  of  goods  :  Evans  v.  Roberts  \{in)  Sainsbury  v. 
Mathews.  (?z)  And  it  will  make  no  difference  whether 
they  are  to  be  reaped  or  dug  up  by  the  buyer  or  by  the 
seller  :  Jones  v.  Flint. (c»)^  The  true  question  is,  whether, 

•(m)  5  B.  &  C.  (11   E.  C.  L.  R.)  829.  (n)  4  M.  &  W.  343. 

(o)  10  A.  &  E.  (37  E.  C.  L.  R.)  753. 

^  In  Evans  v.  Roberts  (which  was  approved  in  Dunne  v.  Ferguson,  1 
Hayes'  (Irish)  Rep.  542,  where  is  an  abLe  opinion  by  Joy,  Ch.  Baron), 
the  case  of  Emerson  v.  Heelis,  2  Taunt.  3S,  was  virtually  overruled,  and 
Waddington  i\  Bristow,  2  B.  &  P.  452,  endeavored  to  be  explained. 
Those  cases  decided  that  a  sale  of  growing  turnips  and  hops  was  within 
the  fourth  section  of  the  statute.  In  Rowell  v.  Phillips,  9  M.  &  W.  501, 
Lord  Abinger  suggested  that  the  difference  appeared  to  be  between 
annual  productions  raised  by  the  labor  of  man,  and  the  annual  produc- 
tions of  nature,  not  referable  to  the  industry  of  man,  except  at  the  period 
when  they  were  first  planted ;  which,  together  with  the  disapprobation 
expressed  of  Waddington  v.  Bristow,"  supra,  would  seem  to  determine 
that  an  annual  crop  is  not  within  the  fourth  section  of  the  statute  ;  and 
it  seems  to  be  generally  held,  on  this  side  of  the  Atlantic,  that  such  a 
crop  is  personal  property,  and  as  such  can  be  sold  by  the  owner  or  taken 
in  execution  :  Newcomb  v.  Rayner,  2  Johns.  430 ;  Whipple  v.  Foot,  Ibid. 
418;  Stewart  «.  Doughty,  9  Ibid.  212  5  Austin  v.  Sawyer,  9  Cow.  39; 
Stambaugh  v.  Yates,  2  Rawle  IGl ;  Myers  v.  White,  1  Ibid.  356;  Bank 
of  Pennsylvania  v.  Wise,  3  Watts  406  ;  Penhallon  v.  Dwight,  7  Mass.  34  ; 
Cutter  u.  Pope,  13  Me.  377;  Craddock  v.  Riddlesberger,  2  Dana  205; 
Brittain  v.  M'Kay.  1  Ired.  265;  Green  v.  Armstrong,  1  Denio  556; 
though,  if  not  severed,  it  would  pass  by  a  conveyance  or  devise  of  the 
land :  Bank  of  Pennsylvania  v.  Wise,  3  Watts  406  ;  Sallade  v.  James,  6 
Penn.  St.  144;  Bear  w.  Bitzer,  16  Penn.  St.  175;  Groff  v.  Levan,  Ibid. 
179  ;  and  in  the  last  two  cases  it  was  suggested  that  the  reason  why  a 
previous  sale  of  the  grain  would  defeat  the  right  of  a  subsequent  pur- 
chaser of  the  land  was  because  such  sale  was  an  implied  severance  of  the 
grain. 

The  weight  of  authority  would  also  seem  to  determine  that  trees,  sold 
as  timber,  and  to  be  presently  cut  and  delivered,  or  trees  and  plants 
growing  in  a  nursery,  to  be  presently  transplanted,  are  also  personal 
property:  Anon.,  1  Ld.  Raym.  182  ;  Smith  v.  Surnam,  supra;  Erskine  v. 
Plummer,  7  Greenl.  447 ;  Miller  v.  Baker,  1  Mete.  27  ;  Whitemarsh  v. 


114  smith's  law  of  contracts. 

in  order  to  effectuate  the  intention  of  the  parties,  it  be 
necessary  to  give  the  buyer  an  interest  in  the  land,  or 

Walker,  Ibid.  313;  Chafflin  v.  Carpenter,  4  Ibid.  580;  Yale  v.  Seelj,  15 
Verm.  221.  But  when  the  property  in  the  trees  is  not  to  pass  until  they 
be  severed,  or  if  time  is  to  be  allowed  for  them  to  reach  maturity,  it  would 
seem  that  the  sale  is  one  of  an  interest  in  land,  and  not  of  a  chattel : 
Putny  V.  Deal,  6  N.  H.  430 ;  Green  v.  Armstrong,  1  Denio  550 ;  5  Barb. 
364.  Manure  has  been  held  to  be  part  of  the  realty,  whether  heaped 
in  a  barnyard  or  spread  upon  the  ground  :  Wctherbee  v.  Ellison,  19 
Verm.  379. 

It  may  be  here  remarked,  that  even  if  the  contracts  referred  to  do  not 
fall  within  the  fourth  section  of  the  statute,  because  not  relating  to  an 
interest  in  land,  they  must  necessarily  fall  within  its  seventeenth  section, 
because  they  relate  to  chattels.  Moreover,  if  the  contract  is  an  entire 
one,  as  for  the  sale  of  the  realty  with  the  crops  growing  upon  it,  a  court 
has  no  i-ight  to  apportion  it ;  and  if  the  sale  of  the  realty  be  avoided  bj" 
the  statute,  that  of  the  personalty  will  also  fall :  Rock  v.  Thayer,  13  Wend. 
53;  Loomis  v.  Newhall,  15  Pick.  166. — r. 

A  verbal  contract  to  pay  for  improvements  on  land,  held  adversely  to 
the  promisor,  in  consideration  that  the  tenant  would  attorn  to  him  and 
pay  him  rent  for  his  unexpired  term,  is  not  within  the  statute  :  Cassill 
V.  Collins,  23  Ala.  676.  A  sale  of  growing  timber,  with  liberty  to  enter, 
cut,  and  carry  it  away,  without  limitation  of  time,  is  an  interest  in  land 
within  the  Statute  of  Frauds  :  Buck  v.  Pickwell,  1  Wms.  157  ;  Yeahle  v. 
Jacob,  33  Penn.  St.  376;  M'Gregor  v.  Brown,  10  N.  Y.  ]14;  Harrell  v. 
Miller,  35  Miss.  700;  Hutching  v.  King,  1  Wall.  (S.'  C.)  53.  A  sale  of 
standing  trees,  in  contemplation  of  their  immediate  separation  from  the 
.soil,  is  a  constructive  severance  of  them.  It  is  distinguished  from  the 
case  of  a  contract  conferring  an  exclusive  right  to  the  land  for  a  time,  for 
the  purpose  of  making  a  profit  out  of  the  growth  upon  it :  Byasseev.  Reese, 
4  Mete.  (Ky.)  372.  Crops  grown  and  ready  to  be  cut  are  chattels,  and 
will  pass  by  parol :  Bryant  v.  Crosby,  40  Me.  9  ;  even  before  their 
maturity :  Bricker  v.  Hughes,  4  Ind.  146  ;  Sherry  v.  Picken,  10  Ibid.  375  ; 
Bull  V.  Griswold,  19  111.  631  ;  Matlock  v.  Fry,.  15  Ind.  483  ;  Frank  v.  Har- 
rington, 36  Barb.  415  ;  Marshall  v.  Ferguson,  23  Cal.  65.  A.  agreed  to 
sell  and  deliver  to  B.  all  the  broom  corn  that  should  be  raised  in  1853, 
on  twenty-five  acres  of  land — held  within  the  statute:  Bowman  v.  Conn, 
8  Ind.  58.  Coals  and  the  right  to  dig  them  is  an  interest  in  land  :  Lear 
V.  Choteau,  23  111.  39.  As  to  growing  timber  see  Hutchins  w.  King,  1 
Wall.  (S.  C.)  53 ;  Byassee  v.  Reese,  4  Mete.  (Ky.)  372  ;  Kingsley  v.  Hol- 
brook,  45  N.  H.  313  ;  Huff  v.  McCauley,  53  Penn.  St.  206.  As  to  grow- 
ing crops  see  Marshall  v.  Ferguson,  23  Cal.  65 ;  Webster  v.  Zielly,  52 
Barb.  482. 


CONTRACTS    FOR    THE    SALE    OF    LANDS.  11-4 

whether  an  easement  of  the  right  to  enter  the  land  for 
the  purpose  of  harvesting  and  carrying  them  away  is  all 
that  was  intended  to  be  granted  to  the  buyer.  But  with 
respect  to  grass,  which,  as  being  the  natural  produce  of 
the  land,  is  said  to  be  not  distinguishable  from  the  land 
itself  in  legal  contemplation  until  actual  severance,  the 
decision  of  Crosby  v.  Wadsworth  appears  to  be  still  ad- 
hered to,  viz.,  that  the  purchaser  of  a  crop  of  mowing 
grass,  unripe,  and  which  he  is  to  cut,  takes  an  exclusive 
interest  in  the  land  before  severance  ;  and  therefore  the 
sale  is  a  sale  of  an  interest  in  land  *  within  the  r:::|-|K-| 
statute.  (/:<)  So  it  has  been  held,  that  the  sale 
of  growing  underwood  to  be  cut  by  the  purchaser  con- 
fers an  interest  in  land  within  the  statute.  (§')  The  same 
has  been  held  as  to  an  agreement  for  the  sale  of  growing 
fruit,  (r)  .  But  where  the  owner  of  trees  growing  on  his 
land  (but  after  two  had  been  cut  down)  agrees  with 
another  while  the  rest  are  standing  to  sell  him  the  tim- 
ber, to  be  cut  by  the  vendor,  at  so  much  per  foot,  this 
is  a  contract  merely  for  the  sale  of  goods.  (5)  The  tim- 
ber was  to  be  made  a  chattel  for  the  seller,  (^f)  And,  per 
Littledale,  J.,  even  if  the  contract  were  for  the  sale  of 
the  trees,  with  a  specific  liberty  to  the  vendee  to  enter 
the  land  to  cut  them,  this  would  not  give  him  an  interest 
in  the  land  within  the  meaning  of  the  statute,  (w)  In 
another  case  on  this  subject  where  the  plaintiff  and  de- 
fendant orally  agreed  (in  August)  that  the  defendant 
should  give  £45  for  the  crop  of  corn  on  the  plaintiff's 

{p)  Carrington  v.  Roots,  2  M.  &  W.  248. 

(q)  Scorell  v.  Boxall,  1  Y.  &  J.  396 ;  Teal  v.  Auty,  2  B.  &  B.  (6  E.  C. 
L.  R.)  99. 

(?•)  Rodwell  V.  Phillips,  9  M.  &  W.  501. 

(s)  Smith  V.  Surman,  9  B.  &  C.  (17  E.  C.  L.  R.)  561. 

{t)  Lord  Faimouth  v.  Thomas,  per  Bailey,  B.,  1  C.  &  M.  105. 

(?f)  9  B.  &  C.  (17  E.  C.  L.  R.)  573  ;  Evans  v.  Roberts,  5  B.  &  C.  (1 1  E. 
C.  L.  R.)  829. 


115 


SMITH  S    LAW    OF    CONTRACTS. 


land,  and  the  profit  of  the  stubble  afterwards,  that  the 
plaintiff  was  to  have  liberty  for  his  cattle  to  run  with 
the  defendant's,  and  that  the  defendant  was  also  to  have 
some  potatoes  growing  on  the  land  and  whatever 
lay  grass  was  in  the   fields,   and   the   defendant  was 


[*116] 


*to  harvest  the  corn  and  dig  up  the  potatoes, 


and  the  plaintiff  was  to  pay  the  tithe ;  it  was 
held,  that  it  did  not  appear  to  be  the  intention  of  the 
parties  to  contract  for  any  interest  in  land,  and  the  case 
was  not,  therefore,  within  the  statute,  but  a  sale  of 
goods  as  to  all  but  the  lay  grass,  and  as  to  that  a  con- 
tract for  the  agistment  of  the  defendant's  cattle,  (z^) 

Upon  very  similar  reasoning,  when  a  tenant  having  a 
right  to  remove  fixtures,  left  them  in  the  house  upon  a 
parol  agreement  with  the  landlord  that  he  should  take 
them  at  a  valuation,  the  Court  were  quite  satisfied  that 
this  was  not  a  sale  of  any  interest  in  land.(2(') 

Neither  does  an  agreement  for  board  and  lodging 
amount  to  a  contract  for  an  interest  in  land ;  and  a  per- 
son having  agreed  with  a  boarding-house  keeper  for 
board  and  lodging  for  himself  and  servant,  and  accom- 
modation for  a  horse,  for  £200  a  year,  and  having  after- 
wards refused  to  enter  on  the  occupation,  was  held 
liable  to  an  action,  although  the  whole  that  passed  be- 
tween them  was  by  word  of  mouth.  The  agreement 
was  merely  that  the  proposed  lodger  should  become  and 
be  received  as  an  inmate  in  the  house  and  family.  (:r) 

But  an  agreement  to  occupy  lodgings  at  a  yearly 
rent,  the  occupation  to  commence  at  a  future  day, 
p:.-|  -,  ~-|  *is  an  agreement  for  an  interest  in  land  within 
the  4th  section,  (y) 

(y)  Jones  v.  Flint,  10  A.  &  E.  (37  E.  C.  L.  R.)  753  ;  Duppa  v.  Mayo, 
1  Wms.  Saund.  277  c,  n.  (/). 

[lo)  Hallen  v.  Runder,  1  C.  M.  &  R.  266. 

(a;)  Wright  v.  Stavert,  29  L.  J.  (Q.  B.)  161. 

(?/)  Inman  v.  Stamp,  1  Stark.  N,  P.  C.  (2  E.  C.  L.  R.)  12. 


CONTRACTS    FOR    THE    SALE    OF    LANDS.  117 

And  such  also  is  an  agreement,  that,  if  one  will  take 
possession  of  a  house  and  become  tenant  upon  its  being 
properly  furnished,  the  other  will  furnish  it  properly.  (2) 
So  also  an  agreement  between  one  who  desired  to  obtain 
the  transfer  of  the  lease  of  a  public-house  and  a  public- 
house  broker  who  had  no  interest  in  the  public-house 
himself,  that  the  latter  would  procure  him  the  lease,  has 
been  held  to  be  a  contract  or  sale  of  an  interest  in  land 
within  the  4th  section.  («) 

Such  also  was  considered  an  agreement  on  the  sale  of 
a  milk-walk  for  £80,  in  which  it  was  agreed  that  the 
purchaser  should  go  into  and  occupy  the  premises  of 
which  the  vendor  was  tenant,  and  should  be  tenant  of 
them  from  midsummer  then  past,  and  should  pay  the 
rent,  rates  and  taxes.  The  defendant  entered,  but 
finding  the  business  not  so  extensive  as  he  expected, 
refused  to  pay  the  wdiole  of  the  £80.  The  Court  con- 
sidered that  the  plaintiff  agreed  to  consign  his  interest 
in  the  premises,  such  as  it  was,  to  the  defendant,  and 
the  latter  agreed  to  pay  the  rents,  rates  and  taxes,  from 
the  last  quarter,  and  that  it  was,  therefore,  expressly 
within  the  statute.  (^) 

*The  same  conclusion  has  been  come  to  where  n^-.  -.  0-1 
one  entered  into  an  agreement  with  another  to 
relinquish,  and  give  possession  to  him  of  a  furnished 
house  for  the  residue  of  a  term  which  the  former  had 
therein,  in  consideration  of  a  sum  of  money  to  be  paid 
by  the  latter  for  certain  repairs  to  be  done  to  the  house. 
It  was  considered  that  the  contract  was  not  merely  that 
one  side  should  repair  and  relinquish  possession,  and 

(z)  Mechelen  v.  Wallace,  7  A.  &  E.  (34  E.  C.  L.  R.).49  ;  Vaughan  i'. 
Hancock,  3  C.  B.  (54  E.  C.  L.  R.)  766. 

(a)  Horsey  v.  Graham,  L.  R.  5  C.  P.  9  ;  39  L.  J.  (C.  P.)  58. 

(6)  Smart  v.  Harding,  24  L.  J.  (C.  P.)  76  ;  15  C.  B.  (80  E.  C.  L.  R.) 
652. 


118 


SMITH  S   LAW   OF    CONTRACTS. 


the  other  pay  the  money  for  the  repah's,  but  that  the 
relmqnishment  being  for  the  remainder  of  a  term,  an 
assignment  was  contemplated,  which  was  clearly  an  in- 
terest in  land.(c)  The  law  is  the  same  whether  the 
interest  agreed  to  be  assigned  or  parted  with  be  legal 
or  equitable,  (f/)  And  the  same  rule  that  the  contract 
cannot  be  enforced  unless  in  writing  applies,  although 
the  consideration  for  the  defendant's  part  of  the  con- 
tract has  been  performed,  and  nothing  remains  to  be 
done  but  the  payment  of  the  money. (e) 

But  when  a  contract  was  that,  in  consideration  that 
the  plaintiff  would  advance  £2000  upon  the  security  of 
a  mortgage  of  certain  land  upon  the  defendant  making 
out  a  good  title  to  mortgage  it,  the  defendant  promised 
to  pay  him  the  expenses  to  which  he  might  be  sub- 


[ni9] 


jected,  in  case  the  loan  ^should  go  off  by  reason 


of  the  defendant  changing  his  views  or  of  the 
defectiveness  of  the  defendant's  title,  the  Court  of  Ex- 
chequer clearly  held  that  tihe  contract  merely  related  to 
the  investigation  of  the  title,  and  did  not  relate  to  any 
interest  in  land.(/) 

In  all  these  cases,  however,  the  observation  applies 
which  I  have  made  in  the  former  lecture  with  reference 
to  cases  falling  within  this  section  in  general.  The  con- 
tract, even  if  by  mere  words,  is  not  void,  but  merely 
incapable  of  being  enforced  by  action.  (^)  And  there- 
fore it  has  been  held,  that,  if  it  actually  has  been  exe- 


(c)  Buttemere  v.  Hayes,  5  M.  &  W.  456 ;  Cocking  v.  Ward,  1  C.  B. 
(50  E.  C.  L.  R.)  858. 

(d)  Kelly  V.  Webster,  21  L.  J.  (C.  P.)  163 ;  12  C.  B.  (74  E.  C.  L.  R.) 
283. 

(e)  Cocking  v.  Ward,  supra;  Kelly  v.  Webster,  supra.     See  p.  125. 
(/)  Jeakes  v.  AVhite,  21  L.  J.  (Ex.)  265  ;  6  Ex.  873. 

[g)  Leroux  v.  Brown,  22  L.  J.  (C.  P.)  1  ;  12  C.  B.  (74  E.  C.  L.  R.)  801. 
See  Laycuck  v.  Pickles,  23  L.  J.  (Q.  B.)  43. 


CONTRACTS    FOR    THE    SALE    OF    LANDS.  119 

cuted,  for  instance,  in  the  case  of  a  sale  of  growing  \\/ 
crops,  by  the  vendee's  reaping  them  and  taking  them    / 
away,  an  action  will  lie  to  recover  the  price  as  for  goods  ' 
sold  and  delivered. (A) 

A  curious  point  has  been  decided  upon  this  section 
with  reference  to  a  parol  demise  of  land.  Such  a  demise, 
if  for  not  more  than  three  years,  is  good  within  the 
Statute  of  Frauds,  the  1st  section  of  which  enacts,  that 
"  all  leases,  estates,  interests  of  freehold,  or  terms  of  years, 
or  any  uncertain  interest  of,  in,  to,  or  out  of  any  mes- 
suages, manors,  lands,  tenements  or  hereditaments,  made 
or  created  *by  livery  and  seisin  only,  or  by  parol,  p^. ,  ^^  -, 
and  not  put  in  writing,  and  signed  by  the  parties 
so  making  or  creating  the  same,  or  their  agents  there- 
unto lawfully  authorized  hg  writing,  shall  have  the  force 
and  effect  of  leases  or  estates  at  will  only."  The  €d 
section  excepts  "  all  leases  not  exceeding  the  term  of 
three  years  from  the  making  thereof,  whereupon  the 
rent  reserved  to  the  landlord  during  such  term  shall 
amount  unto  two  third  parts  at  the  least  of  the  full 
improved    value   of   the    thing  demised."  (2y      But  an 

[h]  Parker  w.  Staniland,  11  East  362;  Poulter  v.  Killingbeck,  1  B.  t 
P.  397.  And  see  the  judgment  in  Teal  v.  Auty,  2  B.  &  B.  (6  E.  C.  L. 
R.)  99. 

[i)  29  Car.  II.,  c  3,  ss.  1,  2.     See  8  &  9  Vict.  c.  106,  .s.  3,  ante, -p.  34. 

^  By  the  Massachusetts  statute,  all  parol  leases  (without  exception  as 
to  duration)  have  the  effect  of  leases  at  will  only  :  Ellis  v.  Paige,  1  Pick. 
43;  Hingham  v.  Sprague,  15  Ibid.  102  ;  Hollis  v.  Paul,  3  Mete.  551; 
Kelly  iJ.Waite,  12  Ibid.  300.  So  in  Maine  :  Little  v.  Pallister,  3  Greenl.  15 ; 
Davis  V.  Thompson,  13  Me.  214.  By  the  New  York  Revised  Statutes  (2 
Rev.  St.  p.  194),  no  estate  or  interest  in  land  other  than  leases  for  a  term 
not  exceeding  one  year  can  be  created,  unless  by  operation  of  law  or  by 
writing.  In  Connecticut  (statute  of  1838)  such  leases  are  invalid,  ex- 
cept as  against  the  grantor.  The  Pennsylvania  statute  (1772)  is,  as  to 
this,  exactly  copied  from  that  of  29  Car.  2  ;  omitting,  however,  the  part 
as  to  the  reservation  of  rent.  This  part,  however,  it  will  be  perceived, 
was  evidently  inserted  in  the  English  statute  as  a  guard  against  pei-jury, 
in  supporting  a  parol  lease  for  three  years  or  less. — r. 


120  smith's  law  of  contracts. 

agreement  for  such  a  lease  falls,  not  within  the  1st,  but 
within  the  4th  section ;  for  it  is  an  agreement  for  an  in- 
terest in  lands;  and,  therefore,  though  a  lease  for  a  year 
would  be  perfectly  good  though  made  verbally,  an  agree- 
ment (so  made)  for  such  a  lease  cannot  be  enforced. 
That  was  the  point  decided  in  Edge  v.  Strafford :(/) 
"  It  may  be  said,"  said  Bayley,  B.,  delivering  the  judg-  * 
ment  of  the  Court  in  that  case,  "  that  it  is  strange  that 
the  2d  section  of  the  statute  has  made  a  lease  for  less 
than  three  years  from  the  making  valid ;  and  yet  that 
no  action  shall  be  maintainable  upon  it  until  it  is  made 
effectual  as  a  lease  by  the  entry  of  the  lessee.  But, 
first,  the  legislature  might  intend  to  make  a  distinction 
between  those  cases  in  which  the  complaining  party  was 
contented  to  confine  himself  to  its  operation  as  a  lease, 
r*19TI  ^^^  sought  nothing  *more  than  as  a  lease  it 
would  give  him,. and  those  in  which  he  went 
further,  and  founded  upon  it  a  claim  for  damages,  which 
might  far  exceed  what  he  could  claim  under  it  in  the 
character  of  a  lease ;  or,  secondly,  this  distinction  might 
not  have  been  contemplated,  but  may  be  the  result  of 
the  true  construction  of  the  Statute  of  Frauds.  The 
1st  section  of  that  statute  provides — that  all  leases, 
estates,  interests  of  freehold,  or  terms  of  years,  or  any 
uncertain  interest  in  lands,  made  by  livery  and  seisin 
only,  or  by  parol,  and  not  put  in  writing,  &c.,  shall  have 
the  force  and  effect  of  leases  or  estates  at  will  only ; 
and  excepts,  nevertheless,  all  leases  not  exceeding  three 
years  from  the  making  thereof,  whereupon  the  rent  re- 
served shall  amount  to  two-thu'ds  of  the  full  improved 
value.  The  4th  section  enacts,  that  no  'action  shall 
be  brought  whereby  to  charge  the  defendant  upon  any 
contract  or  sale  of  lands,  or  ant/  interest  in  or  concerning 

U)  1  C.  &  J.  391  ;  1  Tyr.  293. 


CONTRACTS    TO   BE    PERFORMED   WITHIN.  A    TEAR.       121 

them,  unless  the  agreement  on  which  such  action  shall 
be  brought,  or  some  memorandum  thereof,  be  in  writing.' 
Is,  then,  the  agreement  on  which  this  action  is  brought 
'■a  contract  of  an  interest  in  land?'  Inman  v.  Stamp  (A") 
says  distinctly  it  is:  unless  that  case  be  successfully 
impeached,  it  must  govern  the  present."^ 

The  last  case  provided  for  is  that  of  ani/  agreement 
that  is  not  to  be  pe)'fo7i7ied  tvithin  the  space  of  ^one  r-^,  c)f)-t 
year  from  the  maJcing  thereof.     It  has  been  de- 

(^•)  1  Stark.  (2  E.  C.  L.  R.)  12. 

'  "  The  effect  then,"  said  Bayley,  J.',  in  Edge  v.  Strafford,  "  of  the  Stat- 
ute of  Frauds,  so  far  as  it  applies  to  parol  leases,  not  exceeding  three 
years  from  the  making,  is  this,  that  the  leases  are  valid,  and  that  ■what- 
ever remedy  can  be  had  upon  them  in  their  character  of  leases,  may  be 
resorted  to  ;  but  they  do  not  confer  the  right  to  sue  the  lessee  for  dam- 
ages for  not  taking  possession." 

Although  the  statute  enacts  that  all  leases  by  parol  for  more  than  three 
years  shall  have  the  effect  of  leases  at  will  only,  yet  it  has  been  held,  on 
both  sides  of  the  Atlantic,  that  occupation  and  payment  of  rent  under 
such  a  lease,  will  create  a  tenancy  from  year  to  year :  Clayton  v.  Blakey, 
8  Tr.  3.  And  although  the  parol  lease  for  more  than  three  years  is 
void  under  the  statute,  as  to  the  duration  of  the  term,  yet  the  contract 
will  regulate  the  terms  of  the  holding  in  other  respects,  as,  for  instance, 
the  amount  of  rent,  &c. :  De  Medina  v.  Poulson,  1  Holt  N.  P.  R.  (3  E.  C. 
L.  R.)  47  ;  Richardson  v.  Gifford,  1  Ad.  &  El.  (28  E.  C.  L.  R.)  52  ;  Beale 
V.  Sanders,  5  Scott  58 ;  Schuyler  v.  Leggett,  2  Cow.  660 ;  Edwards  v. 
Coleman,  4  Wend.  480 ;  Prindle  v.  Anderson,  19  Ibid.  391  ;  Hollis  v. 
Paul,  3  Mete.  350  ;  M'Dowell  v.  Simpson,  3  Watts  135.  But  under  the 
statute  as  expressed  in  Maine  and  Massachusetts,  as  all  leases,  unless 
they  be  written,  are  leases  at  will  only,  it  has  there  been  held  that  a 
tenancy  created  by  parql,  cannot,  by  occupation  and  payment  of  rent,  be 
subsequently  enlarged  into  a  tenancy  from  year  to  year :  Ellis  v.  Paige, 
1  Pick.  43  :  Ilingham  v.  Sprague,  15  Ibid.  102;  Kelly  v.  Waite,  12  Ibid. 
308  ;  Little  v.  Pallister,  3  Greenl.  15:  Davis  v.  Thompson,  13  Ibid.  214. 

A  recent  English  statute  (8  &  9  Vict.  c.  106,  g  3)  has  enacted  that 
every  lease  required  by  law  to  be  in  writing,  of  any  tenements  or  here- 
ditaments, made  after  the  1st  of  October  1845,  shall  be  toid  at  law  unless 
made  by  deed  ;  but  Mr.  Chitty  has  remarked  of  this,  that  it  would  prob- 
ably receive  the  same  construction  as  the  section  above  referred  to,  as  it 
would  seem  not  unresaonable  to  hold  that  the  provisions  of  the  statute 
would  be  satisfied  by  restricting  its  effect  to  the  avoidance  of  the  lease, 
as  a  lease  simply :  Chitty  on  Contracts  283,  4th  Eng.  ed. 


122  smith's  law  of  contracts. 

cidecl,  that  the  agreements  meant  by  this  section  are  not 
agreements  which  may  or  may  not  happen  to  be  per- 
formed within  a  year,  but  agreements  which,  on  the 
face  of  them,  contemplate  a  longer  delay  than  a  year 
before  their  accomplishment.  Peter  v.  Compton,(/)  the 
case  usually  cited  as  establishing  this  distinction,  affords 
also  a  very  good  illustration  of  it.  It  was  an  action 
upon  an  agreement,  in  which  the  defendant  promised 
for  one  guinea  to  give  the  plaintiff  ten  on  the  day  of  his 
marriage.  The  case  was  tried  before  Lord  Holt,  who 
reserved  the  question,  whether  a  writing  was  necessary, 
for  the  opinion  of  all  the  Judges,  a  majority  of  whom 
w^ere  of  opinion,  "that,  where  the  agreement  is  to  be 
performed  upon  a  contingency,  and  it  does  not  appear 
w^ithin  the  agreement  that  it  is  to  be  performed  after 
the  year,  there  a  note  in  writing  is  not  necessary,  for 
the  contingency  might  happen  within  the  year ;  but 
where  it  appears  by  the  whole  tenor  of  thp  agreement 
that  it  is  to  be  performed  after  the  year,  there  a  note  in 
writing  is  necessary,  otherwise  not."  There  was  a  dif- 
ference of  opinion  among  the  Judges  in  this  case,  and  it 
is  remarkable  that  Lord  Holt  himself  differed  from  the 
majority.  However,  their  construction  has  been  fre- 
quently adopted  since  that  time.^ 

One  consequence  of  this  section  is,  that  if  a 
^servant  be  hired  for  a  year,  and  the  service-  is 

{I)  Skinner,  353  ;  1  Smith  L.  C,  .6th  ed.  296. 

^  A  parol  contract  by  which  a  son  agreed  to  work  for  his  father  Avhile 
he  lived  to  be  paid  at  his  death,  was  held  not  void  as  a  contract  not  to  be 
performed  within  a  year  :  Updike  v.  Ten  Broeck,  3  Vroom  105.  And 
see  also  Worthy  v.  Jones,  11  Gray  168  ;  Shipley  v.  Patton,  21  Md.  169  ; 
Richardson  v.  Pierce,  7  R.  I.  330 ;  Scoggin  v.  Blackwell,  36  Ala.  351  ; 
Marcy  c.  Marcy,  9  Allen  8 ;  Berry  v.  Doremus,  1  Vroom  399 ;  Doyle  v. 
Dixon,  97  Mass.  208  ;  Swift  v.  Swift,  46  Cal.  266 ;  Marley  v.  Noblett,  42 
Md.  85  ;  Larimer  v.  Kelly,  10  Kan.  298  ;  Riddle  v.  Backus,  38  Iowa  81  : 
Blair  Land  Co.  v.  Walker,  39  Ibid.  406. 


CONTRACTS   TO    BE    PERFORMED   WITHIN    A   YEAR.       123 

to  begin  at  a  future  time,  the  agreement  ought  to  be  in 
writing,  since  it  will  not  be  performed  within  a  year,  {m) 
On  the   other  hand  where,  in  consideration  that  the 
plaintiff  would  be  and  continue  his  servant  as  long  as 
they   should    both  please,  the   defendant   promised  to 
leave  her,  by  his  last  will,  an  annuity  for  her  life ;  it 
was  considered  that  the  statute  did  not  apply,  it  not 
being  expressly  and  specifically  agreed  that  the  agree- 
ment should  not  be  performed  within  the  year.(w)     In 
Wells  V.  Horton,(o)  which  was  a  promise  by  a  testator) 
that  his  executor  should,  at  his  death,  pay  the  plaintiff 
£10,000,  it  .was  held  that  no  writing  was  required  to 
prove  it ;  and  Best,  C.  J.,  said,  the  plain  meaning  of  the 
words-of  the  statute  "is  confined  to  contracts  which  by 
agreement  are  not  to  be  carried  into  execution  within  a 
year,  and  does  not  extend  to  such  as  may  by  circum- 
stances be  postponed  beyond  that  period;    otherwise 
there  is  no  contract  which  might  not  fall  within  the 
statute."     Souch  v.  Strawbridge(^7)  was  a  case  in  which 
it  was  proved  that  there  had  been  a  proposal  that  the 
plaintiff  should  keep  an  infant  child  "^'for  the    p::io4i 
defendant  for  one  year,  at  5s.  a  week,  which  he 
objected  was  too  much  for  so  young  a  child ;  and  it  was 
then  settled  that  it  should  remain  with  the  plaintiff  till 
the  defendant  gave  notice  or  should  think  proper.     It 
remained  with  the  plaintiff  more  than  two  years.     The 
Court  considered  no  writing  to  be  necessary  to  prove 
the  agreement ;  and  Erie,  J.,  said,  the  treaty  certainly 
did  once  contemplate  the  endurance  of  the  contract  for 

(m)  Bracegirdle  v.  Heald,  1  B.  &  Aid.  722 ;  Snelling  v.  Lord  Hunting- 
field,  1  Cr.,  M.  &  R.  20 ;  Giraud  v.  Richmond,  2  C.  B.  {52  £.  C.  L.  R.) 
835  ;  Lcroux  v.  Brown,  22  L.  J.  (C.  P.)  1 ;  12  C.  B.  (74  E.  C.  L.  K.)  801 
See  Cawthorn  v.  Cordrey,  33  L.  J.  (C.  P.)  152. 

{n)  Fenton  v.  Emlers,  3  Burr.  1278. 

(o)  4  Bing.  (13  E.  C.  L.  R.)  40. 

ip)  2  C.  B.  (52  E.  C.  L.  R.)  808. 


124  smith's  law  of  contracts. 

the  child's  maintenance  beyond  a  year ;  but  the  ultimate 
contract  was,  that  the  period  should  be  as  long  as  the 
defendant  should  think  proper. 

Thus,  also  it  is  held  that,  where  it  appears  not  to 
have  been  the  intent  of  the  parties  that  the  agreement 
should  extend  beyond  a  year,  although  it  might  extend 
far  beyond  that  time,  it  need  not  be  in  writing;  but 
where  it  appears  to  be  the  intent  of  the  parties  that  the 
agreement  shall  not  be  performed  within  one  year  from 
the  making,  it  must  be  in  writing,  although  determinable 
upon  a  contingency,  within  a  year.  Therefore,  where 
by  the  terms  of  the  contract  it  was  to  last  for  a  longer 
period  than  a  year,  a  custom  by  which  it  might  be  put 
an  end  to  by  one  of  the  parties  within  that  period  does 
not  take  it  out  of  the  operation  of  the  statute.  (5')  In 
like  manner  an  undertaking  to  pay  an  annuity  for  life 
r:::-i<r)r-\  must  bc  in  writing,  although  it  may  terminate 
by  death  within  a  year.(r)  And  *where  a  per- 
son having  been  the  defendant's  traveller  since  1852, 
entered^  in  October  1854,  into  a  fresh  agreement  at  an 
increased  salary,  whereby  either  party  was  to  be  at 
liberty  to  determine  the  agreement  by  giving  the  other 
three  months'. notice  before  1st  Sept.  1855,  otherwise 
they  were  to  go  on  for  another  year  from  that  time ; 
this  stipulation  for  its  determination  did  not  take  it  out 
of  the  statute.  In  truth,  said  Alderson,  B.,  this  con- 
tract is  not  incapable  of  being  performed  within  a  year ; 
it  may  be  more  truly  said  that  it  is  liable  to  be  defeated 
within  that  time.  In  its  original  conception  it  is  a  con- 
tract for  more  than  a  year.  A  tenancy  from  year  to 
year,  with  power  to  determine  it  within  the  year,  is 
still  a  tenancy  from  year  to  year.(.<?) 

(q)  Birch  V.  Earl  of  Liverpool,  9  B.  &  C.  (17  E.  C.  L.  R.)  392. 

(r)  Sweet  v.  Lee,  3  M.  &  G.  (40  E.  C.  L.  R.)  452. 

[s]  Dobsun  V.  Collis,  25  L.  J.  (Ex.)  267  ;  1  H.  &  N.  8L 


CONTRACTS    TO    BE   PERFORMED   WITHIN    A   YEAR.       125 


Where,  however,  all  that  is  to  be  clone  by  one  party, 
as  the  consideration  for  what  is  to  be  clone  by  the  other, 
actually  is  done  within  the  year,  the  statute  does  not 
prevent  that  party  suing  the  other  for  the  non-perform- 
ance of  his  part  of  the  contract.  Where  the  one  has 
had  the  full  benefit  of  the  contract,  the  law  will  not 
permit  the  other  to  withhold  the  consideration.  As, 
where  a  landlord  had  agreed  to  lay  out  £50  on  improve- 
ments on  the  premises  demised,  and  the  tenant,  in  con- 
sequence, had  undertaken  to  pay  £5  a  year  additional 
rent  for  the  remainder  of  his  term,  of  which  there  were 
several  *years,  and  the  landlord  laid  out  the  v-^a^o-\ 
£50  within  the  year,  he  was  allowed  to  recover 
the  additional  rent,  although  the  agreement  was  not  in 
writing  ;(^)^  for  this  enactment  applies  only  to  contracts 

{i)  Donellan  v.  Reed,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  899  ;  Souch  v.  Straw- 
hridge,  2  C.  B.  (52  E.  C.  L.  R.)  808  ;  Cherry  v.  Heming,  4  Ex.  631.  See 
Nunn  V.  Fabian,  L.  R.  1  Ch.  35 ;  35  L.  J.  (Ch.)  140. 

'  It  has  been  held  in  England  that  the  words  in  the  statute,  "  not  to  be 
performed,"  mean  not  to  be  performed  on  either  side,  that  is,  that  an 
agreement  does  not  come  within  the  statute  provided  all  that  is  to  be  done 
by  one  of  the  parties  is  to  be  done  within  a  year  :  Donellan  v.  Reed,  3  B.  & 
Ad.  (23  E.  C.  L.  R.)  899.  There  the  defendant,  who  was  the  plaintiff's 
tenant  under  a  lease  of  20  years,  promised,  in  consideration  that  the  latter 
would  lay  out  £50  in  alterations,  to  pay  an  additional  £5  annually,  during 
the  remainder  of  the  term.  The  alterations  were  finished  within  the  year, 
and  to  an  action  for  the  additional  £5,  the  defendant  pleaded  that  the  con- 
tract could  not  possibly  be  performed  within  a  year,  and  therefore  ought  to 
have  been  written.  But  the  Court  held  that  as  the  contract  was  entirely 
executed  on  one  side  within  the  year,  and  as  it  was  the  intention  of  the 
parties,  founded  on  a  reasonable  expectation,  that  it  should  be  so,  the  Stat- 
ute of  Frauds  did  not  apply.  Mr.  Smith  has  questioned  the  propriety  of 
this  decision  as  being  opposed  to  ^eter  v.  Compton,  both  in  his  notes  to 
that  case,  in  the  Leading  Cases  (vol.  i.  p.  143),  and  in  his  "  Mercantile 
Law"  (p.  440),  but  in  the  very  recent  case  of  Cherry  v.  H&ming,  4  Exch. 
631,  the  facts  and  the  decisions  were  much  the  same  as  in  Donellan  v. 
Reed,  and  the  Court,  referring  to  the  remarks  of  Mr.  Smith,  were  of 
opinion  that  they  were  not  sufficient  to  induce  them,  to  doubt  the  au- 
thority of  that  case.  On  this  side  of  the  Atlantic  the  construction  thus 
10 


126  smith's  law  of  contracts. 

not  to  he  performed  on  either  side  within  the  vear. 
Therefore,  in  a  case  where  the  defendant,  in  a  letter 
signed  by  him,  pro230sed  to  the  plaintiff  that  she  should 

adopted  has  been  followed  in  some  cases :  Ilolbrook  v.  Armstrong,  1 
Fair.  31  ;  Rake  v.  Pope,  7  Ala.  161 ;  Johnson  v.  Watson,  1  Kelly  348  ; 
but  rejected  in  others  :  Broadwell  v.  Gitman,  2  Denio  87  ;  Cabot  v.  Has- 
kins,  3  Pick.  83  ;  Lockwood  v.  Barnes,  3  Hill  128.  The  practical  differ- 
ence between  these  classes  of  cases  may  be  thus  explained.  "  It  often 
happens,"  as  was  said  in  Donellan  v.  Reed,  "  in  cases  of  parol  sale  of 
goods,  that  they  are  not  to  be  paid  for  in  full  till  after  the  expiration  of 
a  longer  time  than  a  year,  and  surely  the  law  would  not  sanction  a  de- 
fence on  that  ground,  where  the  buyer  had  had  the  full  benefit  of  the 
goods  on  his  part."  Under  such  circumstances,  however,  it  cannot  be 
doubted  that  although  by  the  operation  of  the  statute,  the  seller  might 
fail  to  recover  the  price  of  the  goods  by  the  terms  of  the  contract,  he  could 
not  fail  to  recover  upon  a  quantum  valebant:  Poulter  v.  Killingbeck,  1 
B.  &  P.  397  ;  Earl  of  Falmouth  v.  Thomas,  1  C.  &  Mees.  109  •,  Teal  v. 
Auty,  2  B.  &  Bing.  (6  E.  C.  L.  R.)  99 ;  Philbrook  v.  Belknap,  6  Verm. 
383 ;  and  the  difference  would  therefore  be,  that  under  Donellan  v.  Reed, 
the  plaintiff  could  recover  merely  upon  proving  the  contract  and  its 
performance  on  his  part,  while  under  the  opposite  authorities,  the  bene- 
fit to  the  defendant  must  be  shown. 

The  point  decided  in  Souch  v.  Strawbridge,  supra,  viz.,  that  the  statute 
only  applies  where,  from  the  terms  of  the  agreement,  the  contract  must 
necessarily  extend  beyond  one  year,  was,  long  before  that  decision,  held 
the  same  way  in  Thorne  v.  Fox,  10  Johns.  244,  where  a  pi'omise  was 
made  by  one  of  a  congregation  to  pay  the  plaintiff,  its  pastor,  two  dollars 
a  year  for  his  services  as  such,  and  he  sued  for  services  rendered  many 
years  after,  and  it  was  held  that  the  plaintiff"  having  received  his  salary 
semi-annually,  it  must  be  presumed  that  such  was  the  understanding  at 
the  time  of  the  agreement,  and  hence  the  contract  was  not  within  the 
statute,  because  the  plaintiff  could  have  withdrawn  at  any  time. within 
the  year,  and  yet  recovered  his  services  for  the  first  six  months.  So  in 
Artcher  v.  Zeh,  5  Hill  200 ;  and  it  seems,  also,  that  whenever  the  time  of 
the  duration  of  the  contract  is  to  depend  on  the  contingency  of  life,  the 
contract  need  not  be  written :  Wells  v.  Horter,  4  Bing.  (13  E.  C.  L.  R.)  40 ; 
Thompson  v.  Gordon,  3  Strobh.  197 ;  Bull  v.  McCrea,  8  B.  Mon.  422;  as, 
for  instance,  a  promise  not  to  carry  on  the  business  of  a  livery-stable 
keeper,  because  the  death  of  the  contracting  party  might  happen  within 
the  year :  Lyn  v.  King,  11  Mete.  411  ;  a  promise  to  be  performed  on  the 
death  of  the  promisof  :  Wells  v.  Horton,  4  Bing.  40 ;  Thompson  v.  Gordon, 
3  Strobh.  197,  &c. ;  because  the  death  of  the  promising  party  might 
occur  instantaneously.  The  student  will  find  these  and  many  other  cases 


CONTRACTS   TO   BE    PERFORMED   WITHIN    A    YEAR.       126 

assign  to  the  defendant,  in  trust  for  an  institution  man- 
aged by  him,  a  patent  which  she  had  obtained  for 
making  toys,  such  patent  to  be  used  by  the  institution, 
the  plaintiff  to  have  5  per  cent,  on  the  profits,  and  the 
defendant  to  provide  for  the  next  payment  in  respect  of 
the  patent ;  and  if  the  payments  made  should  not  equal 
a  certain  sum  in  the  first  and  subsequent  years,  the 
.plaintiff  to  have  the  right  to  reclaim  the  patent,  and  this 
proposal  was  accepted  by  the  plaintiff  by  word  of  mouth  ; 
it  was  held  that  the  contract  did  not  require  to  be  in 
writing  under  the  4th  section  of  the  Statute  of  Frauds, 
inasmuch  as  all  that  was  to  be  done  by  the  plaintiff  as 
the  consideration  of  defendant's  promise  was  capable  of 
being  done  within  a  year,  and  it  did  not  appear  that  any 
part  of  it  was  to  be  postponed  until  after  a  year.(w) 

(w)  Smith  V.  Neale,  26  L.  J.  (C.  P.)  143  ;  2  C.  B.  (N.  S.)  (89  E.  C.  L. 
R.)  67. 

classified  in  the  American  note  to  Peter  v.  Compton,  1  Smith's  Lead. 
Cas.  375. — R. 

If  by  its  terms  or  by  reasonable  construction,  a  contract  not  in  writing 
can  be  fully  performed  within  a  year,  althouoh  it  can  be  done  only  by 
the  occurrence  of  some  improbable  event,  as  the  death  of  a  person  re- 
ferred to,  it  is  not  within  the  statute.  So  if  it  can  be  performed  on  one 
side  within  a  year:  Blading  v.  Sargeant,  33  N.  H.  239;  Wiggins  v. 
Keizer,  6  Ind.  252  ;  Saggins  v.  Heard,  31  Miss.  426  ;  Suggett  v.  Cason, 
26  Mo.  221  ;  Burney  v.  Ball,  24  Ga.  505 ;  Sherman  v.  Charaplain  Co.,  31 
Term.  162  ;  Wilson  v.  Bay,  13  Ind.  1  ;  Dresser  v.  Dresser,  35  Barb.  573  : 
Hill  V.  Jamieson,  16  Ind.  125.  Payment  or  performance  of  the  considera- 
tion of  an  agreement,  not  to  be  performed  within  the  year,  never  takes 
it  out  of  the  statute:  Pierce  v.  Paine,  2  Wms.  34;  see  Boutwell  v. 
O'Keefe,  32  Barb.  543.  An  agreement  to  employ  a  person  for  the  term 
of  one  year,  to  commence  in  futiiro,  is  void  :  Amburger  v.  Marvin,  4  E. 
D.  Smith  393 ;  Kelly  v.  Terrell,  26  Ga.  551.  An  agreement  by  an  infant 
to  work  seven  years  for  his  board  is  not  within  the  statute  :  Wilhelm  v. 
Hardman,  15  Md.  140.  A  parol  agreement  not  to  carry  on  a  trade  in 
the  village  of  B.,  is  not  within  the  statute,  as  it  may  be  wholly  performed 
within  one  year  by  the  death  of  either  party  :  Kichardson  v.  Pierce,  7  R. 
I.  330  ;  Worthy  v.  Jones,  11  Gray  168. 


127  smith's  law  of  contracts. 

p.;.  1 97-1  *I  have  now  gone  through  the  five  cases  to 
which  the  4th  section  of  the  Statute  of  Frauds 
applies,  and  in  wliich  it  requires  a  written  memorandum 
of  the  contract.  There  are  one  or  two  cases  of  very 
considerable  importance  in  practice  on  which  I  shall 
briefly  observe  in  the  next  Lecture,  in  which  a  writing 
is  required  by  the  express  enactment  of  the  legislature. 
Having  mentioned  them,  I  shall  say  something  of  the 
consideration  upon  which  a  simple  contract  may  be 
grounded,  and  which  is,  as  you  are  aware,  an  essential 
part  of  every  such  contract ;  and  then,  having  finished 
the  remarks  I  had  to  make  on  Simple  Contracts  exclu- 
sively, shall  resume  the  consideration  of  the  general  law 
of  contracts,  and  shall  speak  of  the  comfetency  or  incom- 
petency  of  the  contracting  parties,  and  of  remedies  by 
which,  in  case  of  breach  of  contract,  their  performance 
is  to  be  enforced. 


SALE    OF    GOODS    UNDER    THE    STATUTE    OF    FRAUDS.     128 


^LECTURE  IV.  [128] 

SALE    OF    GOODS,  ETC.,  UNDER  THE  17tH    SECTION  OF  THE  STA- 
TUTE   OF    FRAUDS. CONSIDERATION  OF  CONTRACTS    BY  DEED 

AND  OF  SIMPLE  CONTRACTS. 

1  CONCLUDED  in  the  last  Lecture  the  consideration  of 
the  five  cases  in  which  the  4th  section  of  the  Statute  of 
Frauds  renders  it  necessary  that  a  contract  should  be 
reduced  into,  writing.  There  are,  as  I  then  said,  a  few 
other  cases,  which,  being  of  constant  occurrence,  it  will 
be  right  to  specify  before  proceeding  to  the  next  branch 
of  the  subject. 

The  first  of  these  cases  is  that  of  a  sale  for  the  price 
of  <£10  or  upwards,  regarding  which  the  17th  section  of 
the  Statute  of  Frauds  has  provided  as  follows  : — 

"  No  contract  for  the  sale  of  any  goods,  wares  or 
merchandises,  for  the  price  of  £10  or  upwards,  shall  be 
good,  except  the  buyer  shall  accept  part  of  the  goods  so 
sold,  and  actually  receive  the  same  ;  or  give  something 
in  earnest  to  bind  the  bargain,  or  in  part  payment ;  or 
that  some  note  or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  *such  contract,  or  their  agents  thereunto  law-  p^-.  ^^q-, 
fully  authorized." 

As  to  the  subject-matter  of  this  section  there  is  little 
difficulty  in  applying  it.  As  to  the  case  of  growing 
crops,  and  trees,  and  roots,  &c.,  in  the  ground,  the  law 
has  been  already  considered  in  treating  of  the  4th  sec- 
tion :  see  page  113.  It  has  been  decided  that  shares  in 
railway  and  other  joint-stock  companies  are  not  an  inter- 
est in  land  within  the  4th  section  of  the  Statute  of 


129  smith's  law  of  contracts. 

Frauds ;  nor  are  tliey  goods,  wares   or  merchandises, 
within  the  17th,(«) 

The  first  great  difference  which  you  will  observe  be- 
tween this  section  and  the  4th  section  of  the  same  Act 
is,  that  the  4th  section  renders  a  writing  necessary  in 
all  cases  which  fall  within  its  terms  ;  whereas  the  17th 
mentions  three  circumstances,  any  one  of  which  it  directs 
shall  be  as  effectual  as  a  writing,  namely,  acceptance  of 
any  part  of  the  goods,  payment  of  part  of  the  price,  and, 
lastly,  the  giving  something  hg  wag  of  earnest  to  bind  the 
bargain,  or  in  part  payment ;  any  one  of  which  three 
things  will  as  effectually  perfect  the  sale  as  a  writing 
would.  Where  none  of  these  has  taken  place,  a  writing, 
however,  becomes  necessary  ;^  and  if ^  there  be  none,  the 

(«)  Humble  V.  Mitchell,  11  A.  &  E.  (39  E.  C.  L.  R.)  205;  Bradley  i\ 
Holdsworth,  3  M.  &  W.  422;  Bowlby  v.  Bell,  3  C.  B.  (54  E.  C.  L.  R.) 
284  ;  Knight  u.  Barber,  16  M.  &  W.  66;  Tempest  v.  Kilner,  3  C.  B.  (54 
E.  C.  L.  R.)  249.  See  Baxter  v.  Brown,  7  M.  &  G.  (49  E.  C.  L.  R.) 
19S. 

^  Delivery  to  and  acceptance  by  the  agent  of  the  vendee  is  sufficient : 
Outwat'er  v.  Dodge,  6  Wend.  397.  Aliter  of  an  acceptance  by  a  mere 
shopboy,  out  of  the  scope  of  his  duty:  Smith  v.  Mason,  Anthon  164. 
Goods  are  received  and  accepted  by  the  purchaser  within  the  Statute  of 
Frauds  when  they  are  transported  by  the  seller  to  the  place  of  delivery 
appointed  by  the  agent  who  contracted  for  them,  and  are  there  delivered 
to  another  agent  of  the  pui-chaser,  and  are  by  him  shipped  to  a  port 
where  the  purchaser  had  given  him  general  directions  to  ship  goods  of 
the  same  kind:  Snow  v.  Warner,  10  Mete.  132.  A  delivery  of  goods  by 
the  vendor,  on  a  parol  sale,  whether  actual  or  constructive,  and  an  ac- 
ceptance by  the  vendee,  is  a  performance  of  the  contract,  and  the  vendor 
cannot  afterwards  retract  and  avoid  thq  sale  as  being  within  the  Statute 
of  Frauds :  Johnson  v.  Watson,  1  Kelly  348.  To  constitute  a  delivery 
and  acceptance  of  goods  sold,  within  the  meaning  of  the  statute,  some- 
thing more  than  mere  words  is  necessary.  There  must  be  some  act  of 
the  parties,  amounting  to  a  transfer  of  the  possession,  and  an  acceptance 
thereof  by  the  buyer,  and  the  case  of  cumbrous  articles  is  not  an  excep- 
tion to  this  rule:  Shindler  v.  Houston,  1  Comst.  261.  Where,  by  the 
terms  of  an  agreement  for  the  sale  and  purchase  of  goods,  cash  is  to  be 
paid  on  the  delivery  of  the  goods,  payment  of  the  money  is  sufficient  evi- 


SALE    OF    GOODS    UNDER    THE    STATUTE    OF    FRAUDS.    130 

hargain  is  void,  and  there  is  %o  sale  :  for,  to  use    r-^^-,  oa-i 
words  of  Mr.   J.  Bosanquet,  in  Laythoarp  v. 


dence  that  the  goods  have  been  delivered  in  pursuance  of  the  contract, 
for  the  purpose  of  taking  the  case  out  of  the  Statute  of  Frauds  :  Aguirre 
V,  Allen,  10  Barb.  S.  C.  74.  See  also  upon  thesubjectof  acceptance  of  part. 
Vincents.  Germon,  11  Johns.  283;  Seymour  v.  Davis,  2  Sandf.  239. 

A  contract  to  make  machines  for  a  specified  price  and  find  the  ma- 
terials, is  not  within  the  statute  :  Spencer  v.  Cone,  1  Mete.  283.  If  the 
"articles  exist  at  the  time  in  the  condition  in  which  they  are  to  be  de- 
livered, it  should  be  regarded  as  a  contract  of  sale  ;  but  if  labor  and  skill 
are  to  be  applied  to  existing  materials,  it  is  then  a  contract  for  theman- 
facture  of  such  article  :  Hight  v.  Ripley,  1  App.  137  ;  Cummings  v.  Din- 
nett,  26  Me.  397  ;  Cason  v.  Cheely,  6  Ga.  554  :  Seymour  v.  Davis,  2  Sandf. 
239  ;  Allen  v.  Jarvis,  20  Conn.  38  ;  Bronson  v.  Wiman,  10  Barb.  S.  C. 
406  ;  Hardell  v.  McClure,  1  Chand.  271.  A  delivery  takes  the  case  out 
of  the  statute  :  Houghtaling  v.  Ball,  19  Mo.  34.  It  may  be  subsequent 
to  the  agreement:  Marsh  v.  Hyde,  3  Gray  331 ;  Sale  v.  Darragh,  2  Hilt. 
184.  A  parol  sale,  unaccompanied  by  an  act  of  the  vendee  indicating 
acceptance  of  the  goods  is  void:  Alderton  v.  Buchoz,  3  Mich.  322;  Shep- 
herd V.  Pressey,  32  N.  H.  49 ;  Gilman  v.  Hill,  36  Ibid.  311.  Partial  de- 
livery by  vendor  is  a  part  performance  which  takes  the  case  out  of  the 
statute:  Dennison  v.  Carnahan,  1  E.  D.  Smith  144;  Swigart  v.  M'Gee, 
19  Ark.  473.  A  parol  contract  for  goods  on  shipboard,  without  delivery, 
is  void  :  Stevens  v.  Stewart,  3  Cal.  140.  Growing  crops  are  not  goods  and 
chattels  within  the  meaning  of  this  provision  :  Bours  v.  Webster,  6  Ibid. 
660.  A  provision  for  the  transportation  of  cattle  to  the  place  of  delivery, 
although  effected  according  to  the  verbal  agreement,  does  not  take  it 
out  of  the  statute:  Barbour  v.  Disher,  11  Rich.  (Law)  347.  When  goods 
are  purchased  under  a  parol  contract,  without  the  payment  of  any  eai'n- 
est  money,  the  delivery  of  them  to  a  carrier,  selected  and  named  by  the 
purchaser,  and  their  acceptance  by  the  carrier,  constitutes  a  sufficient  ac- 
ceptance :  Spencer  v.  Hale,  30  Term.  314.  The  mere  taking  a  sample 
without  an  express  understanding  that  such  taking  is  to  be  a  delivery  is 
not  enough  :  Carver  v.  Lane,  4  E.  D.  Smith  16S.  Tliere  is  no  acceptance 
although  the  goods  may  have  been  delivered  to  a  carrier,  so  long  as  the 
buyer  has  the  right  to  object  to  the  quantity  or  quality  :  Lloyd  v.  Wright, 
25  Ga.  215.  A  verbal  agreement  to  purchase  goods  and  credit  the  price 
towards  payment  of  an  old  debt  is  valid  the  moment  the  act  of  giving  the 
credit  is  performed  by  the  buyer  making  the  entry  in  his  books :  Brabin 
V.  Hyde,  30  Barb.  265.  A  promise  to  pay  to  the  vendor's  creditor,  ac- 
cepted by  him,  who  thereupon  discharges  the  vendor,  is  a  sufficient  part 
payment:  Cottcrill  v.  Stevens,  10  Wis.  422.  A  delivery  and  acceptance 
of  goods,  sufficient  to  satisfy  the  Statute  of  Frauds,  can  only  be  shown  by 


130  smith's  laav  of  contracts. 

Bryant, (^)  "the  4th  section  does  not  avoid  contracts 
not  signed  in  the  manner  described ;  it  only  precludes 
the  right  of  action.  The  17th  section  is  stronger,  and 
avoids  contracts  not  made  in  the  manner  prescribed." 
This  proposition,  however,  it  seems,  should  be  taken 
with  some  qualification  since  the  case  of  Bailey  v. 
Sweeting,  (c)  after  which  it  seems  hardly  safe  to  say 
that  a  parol  sale,  unaided  by  any  of  the  three  formali- 
ties mentioned  in  the  17th  section  as  equivalent  to 
writing,  is  totally  and  entirely  void.  In  that  case,  a 
letter  from  the  purchaser  to  the  seller  of  goods,  written 
after  the  contract  was  made,  and  the  goods  had  been 
sent,  was  held  a  sufficient  memorandum  to  satisfy  the 
17th  section  ;  and  Williams,  J.,  in  giving  judgment  said: 
''  It  cannot  be  controverted  that,  in  point  of  fact,  there 
was  a  good  and  lawful  contract  for  the  sale  of  the  goods, 
the  price  of  which  is  sought  to  be  recovered.  It  is 
clear,  however,  that  as  the  price  is  greater  than  £10, 
the  contract,  though  good,  would  not  be  actionable, 
unless  the  requisites  of  the  Statute  of  Frauds  had  been 
complied  with."  (His  Lordship  here  read  the  17th 
sect.)  "  The  effect  of  that  section  is,  that  though  there 
is  a  Valid  verbal  contract,  it  is  not  actionable,  unless 
p.j.-.o-|-|  *son|ething  of  several  things  has  happened,  one 
of  which  is,  the  existence  of  a  note  or  memo- 
randum in  writing  of  the  bargain  signed  by  the  party  to 
be  charged.  As  soon  as  that  occurs,  the  contract,  though 
not  previously  actionable,  becomes  actionable."  A  doubt 
was  entertained  at  one  period  whether  the  17th  section 

[h)  2  Bing,  N.  C.  (29  E.  C.  L.  R.)  735. 

(c)  9  C.  B.  N.  S.  (99  E..C.  L.  R.)  843,  30  L.  J.  (C.  P.)  150,  154 ;  cited 
post,  p.  137. 

some  clear  and  unequivocal  act:  Denny  v.  Williams,  5  Allen  1.  A  part 
payment  will  not  take  a  contract  out  of  the  statute  unless  made  at  the 
time  of  the  contract :  Bissell  v.  Balcom,  40  Barb.  98. 


SALE    OF   GOODS    UNDER    THE    STATUTE    OF    FRAUDS.     131 

included  the  case  of  a  contract  for  something  not  in  ex- 
istence in  a  chattel  state  at  the  time  of  making  the 
bargain,  but  which  was  to  become  a  chattel  before  the 
time  agreed  upon  for  its  delivery.  (J)  Where,  for  in- 
stance, growing  timber  was  bargained  for,  to  be  deliA'- 
ered  cut  into  planks,  or  a  ship  or  a  carriage  not  yet 
built.^     However,  any  doubt  that  formerly  existed  on 

{d)  Lee  v.  Griffin,  30  L.  J.  (Q.  B.)  252. 

^  It  was  formerly  held  that  executory  contracts  were  not  within  the 
statute,  but  that  it  was  confined  to  cases  where  the  buyer  was  imme- 
diately answerable  :  Towers  v.  Osborn'e,  Str.  506  ;  Clayton  v.  Andrews, 
4  Burrow  2101';  but  this  distinction  was  doubted  by  Lord  Thurlow,  in 
H  Brown's  Cas.  in  Ch.  355,  and  was  subsequently  overruled  :  Rondeau 
r.  Wyatt,  2  H.  Bl.  63  ;  Cooper  v.  Elston,  7  T.  R.  1-i. 

The  statute  of  9  Geo.  IV.  has  not  been  generally  re-enacted  in  this 
country,  and  hence  the  English  cases  upon  the  construction  of  this 
part  of  the  Statute  of  Frauds  before  its  alteration  have  still  a  practical 
application  here.  The  first  case  was  Towers  v.  Osborne,  already  cited, 
where  the  defendant  bespoke  a  chariot,  and  refused  to  take  it  when 
made,  and  the  Court  held  that  a  writing  was  not  necessary,  for  the  sta- 
tute "  related  only  to  contracts  for  the  actual  sale  of  goods,  when  the 
buyer  is  immediately  answerable,  without  time  given  him  by  special 
agreement."'  Then  came  Clayton  v.  Andrews,  su^jra,  where  the  plain- 
tifi"  agreed  to  deliver  a  load  and  a  half  of  wheat  within  a  month,  at  so 
much  a  load,  to  be  paid  on  delivery,  the  wheat  being  then  unthrashed, 
and  the  Court,  on  the  authority  of  Towers  v.  Osborne,  held  the  case  not 
to  be  within  the  statute,  rather,  however,  on  the  ground  of  the  contract 
being  executory  than  because  the  wheat  did  not  then  exist  in  the  form 
in  which  it  was  to  be  delivered.  Then  these  two  cases  were,  as  has  been 
said,  OA'erruled  as  to  the  distinction  between  executed  and  executory 
contracts.  Then  in  Garbutt  v.  Watson,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  613, 
the  contract  was  for  the  delivery  of  flour,  which  was  then  unground 
wheat,  and  the  Court  said  that  "  in  Towers  v.  Osborne,  the  chariot 
which  was  ordered  to  be  made  would  never,  but  for  that  order,  have 
had  any  existence.  But  here  the  plaintiffs  were  proceeding  to  grind  the 
flour  for  the  purposes  of  general  sale,  and  sold  this  quantity  to  the  de- 
fendant as  part  of  their  general  stock.  The  distinction. is  indeed  some- 
what nice,  but  the  case  of  Towers  v.  Osborne  is  an  extreme  case,  and 
ought  not  to  be  carried  further,"  and  it  was  said  that  the  question  was 
whether  the  contract  was  for  the  sale  of  goods,  or  for  work  and  labor  and 
materials  found ;  and  the  case  of  Clayton  v.  Andrews,  which  was  scarcely 


131  smith's  law  of  contracts. 

this  subject  is  now  put  an  end   to;  for,  by  statute  9 
Geo.  4,  c.  14,  s.  7,  it  is  enacted  that  the  17th  section  of 

distinguishable  from  the  present  one  on  this  point,  was  said  to  have  been 
also  incorrectly  decided  upon  the  point  of  the  condition  of  the  wheat. 
Subsequent  cases  have  held  that  contracts  to  sell  oil  not  then  expressed 
from  seeds  :  Wilks  v.  Atkinson,  6  Taunt.  (1  E.  C.  L.  R.)  11  -,  to  supply  a 
house  with  pipes  to  be  laid  in  a  specified  manner:  West  Middlesex  Co.  v. 
Suwerkropp,  M.  &  M.  (22  E.  C.  L.  R.)  408  ;  to  make  a  copper-plate  press 
to  be  ready  in  three  months:  Pinners.  Arnold,  2  Cr.,  Mees.  &  Rose.  613, 
overruling  Buxton  v.  Bedell,  3  East  304,  and  the  like,  are  Avithin  the  stat- 
ute, and  must  therefore  be  written  ;  but  a  contract  to  deliver  a  quantity 
of  oak  pins,  which  were  not  then  made,  but  were  to  be  cut  out  of  slabs, 
being  merely  an  agreement  for  labor  to  be  done  upon  materials  found, 
was  held  not  to  be  a  "  contract  for  the  sale  of  goods,"  for  the  thing  to  be 
delivered  did  not  exist  in  soUdo,  and  would  be  incapable  of  delivery  : 
Groves  v.  Buck,  3  M.  &  S.  178.    In  this  country,  the  distinction  between 
the  contract  being  executed  and  executory  has  also  been  disregarded  : 
Bennet  v.  Hull,   10  Johns.  364 ;  Crookshank  v.  Burrell,  18  Ibid.  58  : 
Jackson  v.  Covert,  5  Wend.   141  ;  Cason  v.  Cheely,  6  Ga.  554.     As  re- 
spects the  condition  of  the  subject  of  the  contract,  it  has  been  truly  said 
that  "  the  difficulty  arises  not  so  much  from  any  uncertainty  in  the  rule, 
as  from  the  infinitely  various  shades  of  different  contracts.     If  it  is  a 
contract  to  sell  and  deliver  goods,  whether  they  are  then  completed  or 
not,  it  is  within  the  statute.     But  if  it  is  a  contract  to  make  and  deliver 
an  article  or  a  quantity  of  goods,  it  is  not  within-  the  statute  :"  per 
Shaw,  C.  J.,  in  Gardner  v.  Joy,  9  Mete.  179 ;  and  the  same  judge  subse- 
quently thus  laid  down  the  rule  :  "  When  a  person  stipulates  for  the 
future  sale  of  articles  which  he  is  habitually  making,  and  which  at  the 
time  are  not  made  or  finished,  it  is  essentially  a  contract  of  sale,  and  not 
a  contract  for  labor  ;  otherwise,  when  the  article  is  made  pursuant  to  an 
agreement :"  Lamb  v.  Crafts,  12  Ibid.  356  ;  Cason  v.  Cheely,  6  Ga.  554. 
Thuf^,  agreements  to  make  the  woodwork  of  a  wagon,  to  be  paid  for  in 
lambs  at  one  dollar  a  head  :  Crookshank  v.  Burrell,   IS  Johns.  58  ;  to 
completely  line  with  cloth,  selected  by  defendant,  a  buggy  of  which  the 
body  existed  in  an  unfinished  state  :  Mixer  v.  Howarth,  21  Pick.  204 ; 
to  make  ten  stave  machines,  and  find  the  materials  :  Spencer  v.  Cone, 
1  Mete.  283  ;  to  make  twelve  surgical  adjusters,  and  find  the  materials  : 
Allan  V.  Jarvis,  20  Conn.  38  ;  to  furnish,  as  soon  as  practicable,  one 
thousand  or  twelve  hundred  malleable  hoe  shanks,  agreeably  to  patterns 
furnished  :  Ilight  v.  Ripley,  19  Me.  137  ;  were  respectively  held  not  to 
be  contracts  within  the  statute:  see  Cummings  v.  Dennett,  '26  Ibid.  397  ; 
but  a  contract  for  the  purchase  of  one  hundred  boxes  of  candles,  the 
time  of  deliverinii  not  being  mentioned,  but  the  defendant  stating  that 


SALE    OF    GOODS    UNDER    THE    STATUTE    OF    FRAUDS.    131 

the  Statute  of  Frauds  "  shall  extend  to  all  contracts  for 
the  sale  of  goods  of  the  value  of  <£10  sterling  and  up- 
wards, notwithstanding  the   goods  may  be  intended  to 

they  were  not  yet  manufactured,  but  he  would  manufacture  and  deliver 
them  in  the  coui'se  of  the  summer,  was  in  a  late  case  held  to  be  a  "  sale 
of  goods"  within  the  statute  :  Gardner  *.  Joy,  9  Mete.  179  ;  so  of  cider 
not  yet  manufactured  :  Seymour  v.  Davis,  2  Sandf.  241  ;  wheat  not  yet 
thrashed  :  Downs  v.  Ross,  23  Wend.  274 ;  and  cotton  to  be  packed  in 
bales  :  Cason  v.  Cheely,  6  Ga.  554.  In  Maryland,  in  1821,  the  case  of 
Eichelberger  v.  M'Caulay,  5  Harr.  &  John.  214,  was  for  the  delivery  of 
unthrashed  wheat,  and  on  the  authority  of  Clayton  v.  Andrews,  the  con- 
tract was  held  not  to  be  within  the  statute,  but  the  late  authorities  seem 
generally  to  agree  in  condemning  tlie  decision  of  that  case,  and  say, 
moreover,  of  Towers  v.  Osborne,  that  it  was  rightly  decided,  but  upon  a 
wrong  reason. 

It  has  been  held  in  England  thatcontractsfor  the  sale  of  shares  in  a  joint- 
stock,  banking  company,  or  in  a  railway  company,  or  of  foreign  stock,  need 
not  be  in  writing,  as  not  coming  within  the  term  "  goods,  wares  or  mer- 
chandise :"  Humble  v.  Mitchell,  11  Ad.  &  Ell.  (39  E.  C.  L.  R.)  205; 
Bowbly  V.  Bell,  3  Com.  Bench  (54  E.  C.  L.  R.)  284,  Ibid.  249;  Duncroft 
V.  Albrecht,  12  Simons  189  ;  Hazeltine  v.  Siggens,  I  Exch.  867  ;  but  in 
Colvin  V.  Williams,  3  Ilarr.  &  Johns.  38,  and  Tisdale  v.  Harris,  20  Pick. 
9,  the  statute  was  diiferently  construed  (in  Gadsden  v.  Lance,  1  M'Mul- 
lan,  Ch.  87,  this  point  was  left  undecided),  and  in  Baldwin  v.  Williams, 
3  Mete.  3(35,  the  authority  of  Tisdale  v.  Harris  was  confirmed,  and  the 
statute  held  to  apply  also  to  sales  of  promissory  notes. — r. 

An  agreement  to  procure  and  deliver  at  a  certain  time  and  place 
one-half  of  a  frame  for  a  vessel  to  be  hewn  and  fashioned  according  to 
certain  mould,  is  not  within  the  statute  :  Abbot  v.  Gilchrist,  38  Me.  260. 
A  contract  for  delivery  at  a  future  day  of  goods  yet  to  be  manufactured 
is  not  a  contract  for  sale,  but  for  work  and  labor  only  :  Donovan  v. 
Willson,  26  Barb.  138  ;  Parker  v.  Schenck,  28  Ibid.  38  ;  see  Woodford 
V.  Patterson,  32  Ibid.  630  ;  Mead  v.  Case,  33  Ibid,  202 ;  Phipps  t'. 
M'Farlane,  3  Minn.  109  ;  Atwater  v.  Hough,  29  Conn.  508  :  a  contract 
for  the  manufacture  of  an  article  out  of  material  to  be  supplied  by  the 
manufacturer  is  not  within  the  statute  :  Higgins  v.  Murray,  4  Keen  565  : 
Crockett  v.  Scribner,  64  Me.  447  ;  a  contract  for  the  sale  of  corn  if  by 
its  terms  the  corn  is  to  be  gathered  and  shocked  before  delivery  is  not 
within  the  statute:  Reutch  v.  Long,  27  Md.  188;  Webster  v.  Zielly,  52 
Barb.  482  ;  and  see  Ross  v.  Welch,  1 1  Gray  235  ;  Bissell  v.  Bascom,  40 
Barb.  98  ;  Wylie  v.  Kelly,  41  Ibid.  594  ;  Malone  v.  Plato,  22  Cal.  103  ; 
Brabin  v.  Hyde,  32  N.  Y.  519;  Say  v.  Neville,  25  Cal.  545;  Hill  v. 
M'Donald,  17  Wis.  97  :  Dow  v.  Worthen,  37  Verm.  108. 


131  smith's  law  of  contracts. 

be  delivered  at  some  future  time,  or  may  not,  at  the 
time  of  such  contract,  be  actually  made,  procured,  or 
provided,  or  fit  or  ready  for  delivery,  or  some  act  may 
be  requisite  for  the  making  or  completing  thereof,  or 
rendering  the  same  fit  for  delivery."  These  two  stat- 
utes, according  to  a  well-known  rule,  are  to  be  read  as 
r*i  Q9-1  incorporated  together, (e)  one  effect  of  *which  is 
that  the  17th  section  of  the  Statute  of  Frauds 
must  be  read  as  applying  to  all  goods,  &c.,  of  the  value  1 
of  <£10,  instead  of  the  price  to  that  amount.  (/) 

Where  a  writing  is  relied  on  to  satisfy  the  provisions 
of  the  17th  section,  the  rules  which  govern  the  case  are 
very  analogous  to  those  which  I  have  already  stated 
with  regard  to  the  4th.  The  signature  must  be  by  the 
party  to  be  charged  or  his  agent.  And  one  party  can- 
not be  the  other's  agent  for  this  purpose.  (^)  Nor 
where  the  agent  of  the  party  complaining  of  a  breach 
of  the  contract  has  signed  with  his  own  name  a  memo- 
randum of  the  bargain  at  the  request  of  the  party  to  be 
charged,  is  he  to  be  considered  as  the  agent  of  the  lat- 
ter in  the  absence  of  other  circumstances  showing 
authority  to  the  signer  to  act  as  the  agent  of  the  party 
to  be  charged,  (/i)  But  under  neither  the  4th  nor  the 
17th  section  is  there  any  necessity  for  the  agent's  being 
appointed  by  writing. 

Under  the  17th  section,  too,  as  well  as  under  the  4th, 

(e)  Scott  V.  Eastern  Counties  Railway  Co.,  12  M.  &  W.  33;  Harman 
V.  Reeve,  25  L.  J.  (C.  P.)  257  ;  18  C.  B.  (86  E.  C.  L.  R.)  587. 

(/")  Harman  v.  Reeve,  supra. 

((/)  Wright  V.  Dannah,  2  Camp.  203  ;  Farebrother  v.  Simmons,  5  B.  & 
Aid.  (7  E.  C.  L.  R.)  333  ;  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720;  40  L. 
J.  Q.  B.  312. 

(A)  Graham  v.  Musson,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  603  ;  Graham 
V.  Fretwell,  3  M.  &  G.  (42  E.  C.  L.  R.)  368.  See  Bird.  v.  Boulter,  4  B.  & 
Ad.  (24  E.  C.  L.  R.)  Wi,  post ;  and  Mews  v.  Carr,  26  L.  J.  (Ex.)  39  ; 
1  H.  &  N.  484  ;  Durrell  v.  Evans,  30  L.  J.  (Ex.)  254. 


SALE    OF    GOODS    UNDER    THE    STATUTE    OF    FRAUDS.     132 

several  documents  may  be  read  together  as  making  up 
the  contract,  provided  they  be  sufficiently  *con-  pij-ioo-i 
nected  in  sense  among  themselves  without  the  ■ 

aid  of  parol  evidence,  (z)  And  in  such  cases,  as  different 
phrases  are  commonly  used  in  the  different  documents, 
it  is  peculiarly  important  to  ascertain  that  both  parties 
mean  the  same  thing ;  as  where  there  was  a  treaty  for 
the  sale  of  a  horse,  and  one  wrote  that  he  would  buy 
him  if  warranted  sound  and  quiet  in  harness,  and  the 
other  wrote  that  he  would  warrant  him  sound  and  quiet 
in  double-harness,  it  was  considered  by  the  Court  that 
the  parties  never  had  contracted  in  writing  ad  idem, 
and,  consequently,  that  the  statute  had  not  been  com- 
plied with.(/) 

The  defendants  wrote  to  the  plaintiffs  offering  them 
a  certain  quantity  of  "good"  barley  upon  certain  terms, 
to  which  the  plaintiffs  answered,  after  quoting  the  de- 
fendant's letter,  as  follows  r — "  Of  which  offer  we  accept, 
expecting  you  will  give  us  fine  barley  and  full  weight.'' 
The  defendants,  in  reply,  stated  that  their  letter  con- 
tained no  such  expression  as  Jine  barley,  and  declined 
to  ship  the  same.  Evidence  was  given  at  the  trial  that 
the  terms  "good"  and  "fine"  were  terms  well  known  in 
the  trade,  and  the  jury  found  that  there  was  a  r^ji  o^-i 
^distinction  in  the  trade  between  "good"  and 
"fine"  barley.  It  was  held,  that  although  it  was  a 
question  for  the  jury  what  was  the  meaning  of  those 
terms  in  a  mercantile  sense,  yet,  that  they  having  found 
what  that  meaning  was,  it  was  for  the  Court  to  deter- 

{i)  Smith  V.  Siirman,  9  B.  &  C.  (17  E.  C.  L.  R.)  561  ;  Archer  v. 
Baynes,  5  Ex.  625  ;  Phillimore  v.  Barry,  1  Camp.  513  ;  Jackson  v.  Lowe, 
1  Bing.  (8  E.  C   L  R.)  9. 

{j)  Jordan  v.  Norton,  4  M.  &  W.  155 ;  Hutchinson  v.  Bowker,  5  M.  & 
W.  535  5  see  Sivewright  v.  Archibald,  17  Q.  B.  (79  E.  C.  L.  R.)  103;  20 
L.  J.  (Q.  B.)  529. 


134  smith's  law  of  contracts. 

mine  the  meaning  of  the  contract ;  and  the  Court  held 
that' there  was  not  a  sufficient  acceptance,  (i^) 

It  need  hardly  be  added  that  although  it  appears  that 
there  are  several  memoranda  of  the  contract,  it  will  not 
be  presumed  that  they  differ ;  but  on  the  contrary,  if 
any  one  of  them  contain  enough  to  show  the  contract, 
it  is  a  sufficient  memorandum  within  the  statute. 
Therefore,  in  an  action  by  the  vendor  against  the  pur- 
chaser of  goods,  a  note  signed  by  a  broker  acting  for 
both  parties,  expressing  that  the  broker  had  "sold" 
specified  goods  at  a  specified  rate,  and  containing  all  the 
terms  of  the  contract  (which,  from  containing  the  word 
"  sold,"  is  called  in  commerce  the  sold  note,  and  should, 
in  fact,  correspond  with  another  also  signed  by  the 
broker  and  called  the  bought  note),  was  sufficient  to 
satisfy  the  statute.  "If  in  ordinary  practice,"  said 
Willes,  J.,  "the  bought  and  sold  notes  were  different 
things,  there  might  be  some  ground  for  the  defendant's 
argument,  but  it  is  well  known  that  in  ordinary  practice 
they  are  identical — the  one  being  a  copy  of  the  other ; 
and,  therefore,  it  would  be  a  violent  presumption  to 
r*-|  qc-|  assume  in  favor  of  the  defendant  *that  the 
bought  note  was  a  different  one  from  the  sold 
note.  The  sold  note  is  to  be  presumed,  until  the  con- 
trary is  shown,  to  represent  the  contract  between  the 
parties."  (/) 

It  was  said  by  Lord  Ellenborough,  in  Egerton  v. 
Matthews,  (m)  that  the  word  bargain,  used  in  this  sec- 
tion, does  not  render  so  strict  a  statement  of  the  trans- 
action necessary,  as  the  word  agreement,  used  in  the 
4th,  does  of  matters  within  that  section.     It  has,  how- 

[k)  Hutchinson  v.  Bowker,  5  M.  &  W.  535. 
[1]  Parton  v.  Crofts,  33  L.  J.  (0.  P.)  189. 
(m)  6  East  307. 


SAlE    OF    LAXDS   UNDSR    THE    STATUTE    OF    FRAUDS.    135 

ever,  been  decided  that  the  names  of  both  parties  must 
appear  in  the  memorandum,  though  the  signature  of  the 
party  to  he  bound  alone  is  requisite;  for,  as  the  Court, 
observed,  there  cannot  be  a  hargain  without  two  parties,, 
and  therefore  a  memorandum  naming  one  only  is  not  a 
memorandum  of  a  bargain,  (w)  And  the  price  ou^'ht  to 
be  stated  if  oiie..jvas  agreed  on,  for  that  is  part  of  the 
bargain,  (o)  A  memorandum  is  not  sufficient  that  does 
not  mention  price,  if  an  agreement  has  been  come  to  on 
that  point.  Thus,  when  the  seller  showed  the  buyer  a 
list  of  prices,  and  the  buyer  only  agreed  to  purchase  on 
condition  of  a  deduction  of  25  per  cent,  from  such 
prices  for  cash  payment,  *and  then  wrote  an  p.:.-.  o/^-i 
order  for  certain  of  the  articles,  not  specifying 
anything  as  to  price  ;  this  was  held  not  enough  to  satisfy 
the  statute,  and  a  subsequent  letter  from  him  declining 
to  take  the  goods,  was  deemed  also  insufficient  to  take 
the  case  out  of  the  statute.- (j>:>)  If  no  price  be  named, 
the  parties  must  be  understood  to  have  agreed  for  what 
the  thing  is  reasonably  worth.  (/^)  Thus,  an  order  for 
goods  "  on  moderate  terms"  is  a  sufficient  memorandum 
within  the  17th  section  of  the  Statute  of  Frauds. (r) 
A  contract  for  the  sale  of  goods  of  the  value  of  £10  is 
within  the  17th  section,  although  it  includes  other  mat- 
ters for  which  a  writing  is  not  necessary .  (-s)     And  if 

[n)  Champion  v.  Plummer,  1  B.  &  P.  (N.  R.)  252;  Williams  v.  Lake, 
2  E.  &  E.  (105  E.  C.  L.  R.)  349  ;  29  L.  J.  (Q.  B.)  1 ;  Vandenber.irh  v. 
Spooner,  L.  R.,  1  Ex.  316  ;  35  L.  J.  (Ex.)  201  ;  see  Newell  v.  Radford, 
L.  R.,  3  C.  P.  52  ;  37  L.  J.  (C.  P.)  1. 

[o)  Elmore  v.  Kingscote,  5  B.  &  C.  (11  E.  C.  L.  R.)  5S3  ;  Hoadley  v. 
M'Laine,  10  Bing.  (25  E.  C.  L.  R.)  4S2. 

{p)  Goodraaa  v.  Griffiths,  26  L.  J.  (Ex.)  145 ;  1  H.  &  N.  574. 

[q)  Valpy  v.  Gibson,  4  C.  B.  (56  E.  C!  L.  R.)  837. 

(r)  Ashcroft  v.  Morrin,  4  M.  &  Gr.  (43  E.  C.  L.  R.)  450. 

[s]  Harman  v.  Reeve,  25  L.  J.  (C.  P.)  257  ;  18  C.  B  (86  E.  C.  L'.'R.) 
587  ;  Watts  v.  Friend,  10  B.  ^  C.  (21  E.  C.  L.  R.)  446. 


136  smith's  law  of  contracts. 

the  memorandum  contains  all  that  was  to  be  done  by 
the  party  sought  to  be  charged,  it  has  been  held  suffi- 
cient to  satisfy  the  17th  section,  though  not  to  make  a 
valid  agreement  in  cases  within  the  4th  section.  (^)  But 
it  is  important  to  be  borne  in  mind  that  in  construing 
these  memoranda  the  surrounding  circumstances  may 
be  considered,  which  often  make  that  quite  plain  which 
would  be  obscure  without  th.em..(u) 
r*1  ^71  '^^^  '^^  ^^^^  decided,  that  a  memorandum  is 
sufficient  which  contains  all  the  terms  of  the 
bargain,  and  acknowledges  it  to  have  been  made,  but  at 
the  same  time  repudiates  the  contract.  Thus,  where 
the  purchaser  of  goods  wrote  to  the  seller,  referring  to 
all  the  material  terms  of  the  contract,  but  stating  that 
he  had  never  received  the  goods,  and  declined  to  do  so 
because  they  had  been  damaged  by  the  carrier  before 
they  reached  him ;  the  Court  considered  that  the  former 
part  of  the  letter  contained  a  memorandum  of  the  con- 
tract, which  was  all  that  was  required  by  the  statute ; 
and  that  the  existence  in  the  same  writing  of  the  refusal 
to  abide  by  the  bargain  did  not  neutralize  the  acknow- 
ledgment. (:?;)  But  although  the  statute  invalidates  all 
contracts  for  the  sale  of  goods  unless  in  writing,  or 
unless  the  buyer  accept  the  goods,  or  give  earnest,  or 
pay  in  whole  or  part,  and  therefore  virtually,  and  in 
effect  forbids  their  being  in  any  way  varied  or  altered 
by  parol  -,{?/)  yet  it  does  not  forbid,  their  being  rescinded 

{t)  Sari  V.  Bourdillon,  26  L.  J.  (C.  P.)  78  ;  1  C.  B.  (N.  S.)  (87  E;  C. 
L.  R.)  188  ;  Egerton  v.  Matthews,  6  East  307. 

(u)  Newell  v.  Radford,  L.  R.  3  C.  P.  52;  37  L.  J.  (C.  P.)  1. 

[x)  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.)  (99  E.  C.  L.  R.)  843 ;  30  L.  J. 
(C.  p.)  150;  AVilkinson  v.  Evans,  L.  R.  1  C.  P.  407;  35  L.  J.  (C.  P.) 
224  ;  Buxton  v.  Rust,  L.  R.  7  Ex.  1,  279  (Ex.  Ch.)  ;  41  L.  J.  Ex.  1,  173. 

(V)  Harvey  v.  Grabham,  5  A.  &  E.  (31  E.  C.  L.  R.)  61  ;  Marshall  v. 
Lynn,  6  M.  &  W.  109 ;  Stead  v.  Dawber,  10  A.  &  E.  (37  E.  C.  L.  R.)  57  ; 


RATIFICATION   OF    CONTRACTS    BY    INFANTS.  138 

by  parol ;  *aiicl  there  is  no  doubt  that  they  may    r:::^3g-| 
be  so  rescinded.  (0) 

Another  case,  in  which  the  legislature  has  required 
that  a  particular  contract  shall  be  in  writing,  is  that  of 
an  infant.  There  are  many  contracts  which,  when  en- 
tered into  by  an  infant  under  the  age  of  twenty-one 
years,  are  invalid,  as  I  shall  have  occasion  to  explain  to 
you  at  greater  length  when  I  arrive  at  that  part  of  the 
subject  which  relates  to  the  competency  of  parties  to  con- 
tracts, but  which  are  capable  of  being  ratified  by  the 
infant  when  he  arrives  at  his  full  age  of  twenty-one. (^.e) 
This  ratification  might,  at  common  law,  have  been  b}^ 
parol ;  but,  by  9  Geo.  IV.  c.  14,  s.  5,  no  action  shall  be 
maintained  whereby  to  charge  any  person  upon  any 
promise  made  after  full  age  to  pay  any  debt  contracted 
during  infancy,  or  upon  any  ratification  after  full  age  of 
any  promise  or  simple  contract  made  during  infancy, 
unless  such  promise  or  ratification  be  in  tmting,  signed 

Moore  v.  Campbell,  23  L.  J.  (Ex.)  310  ;  Noble  v.  Ward,  35  L.  J.  (Ex.) 
81  ;  36  L.  J.  (Ex.)  91,  in  Ex.  Ch. ;  s.  c.  L.  R.  1  Ex.  117  ;  Ibid.  2  Ex. 
135. 

[z]  Ibid. ;  see  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  58. 

[zz)  The  law  on  this  subject  has  been  altered  by  "  the  Infant's  Relief 
Act  1874"  (37  &  38  Vict.  c.  62),  which  was  passed  on  the  7th  Au^;.,  1874. 
The  1st  and  2d  sections  of  that  Act  are  as  follows  : — 

1.  "All  contracts,  whether  by  specialty  or  by  simple  contract,  hence- 
forth entered  into  by  infants  for  the  repayment  of  money  lent  or  to  be 
lent,  or  for  goods  supplied  or  to  be  supplied  (other  than  contracts  for 
necessaries),  and  all  accounts  stated  with  infants,  shall  be  absolutely 
void  :  Provided  always  that  this  enactment  shall  not  invalidate  any  con- 
tract into  which  an  infant  may,  by  any  existing  or  future  statute,  or  by 
the  rules  of  common  law  or  equity,  enter,  except  such  as  now  by  law 
are  voidable." 

2.  ■•  No  action  shall  be  brought  wherel)y  to  charge  any  person  upon 
any  promise  made  after  full  age  to  pay  any  debt  contracted  during 
infancy,  or  upon  any  ratification  made  after  full  age  of  any  promise  or 
contract  made  during  infancy,  whether  there  shall  or  shall  not  be  any 
new  consideration  for  such  promise  or  ratification  after  full  age." 

11 


138  smith's  law  of  contracts. 

by  the  party  to  be  charged  therewith.  In  the  con- 
struction of  this  Act,  it  has  been  considered,  that  any 
written  instrument,  signed  by  the  infant,  who  has 
attained  his  majority,  w^ill  amount  to  a  ratification  of  an 
act  done  by  himself  while  an  infant,  provided  it  be  such 
as,  in  the  case  of  an  adult,  Avould  amount  to  an  adop- 
r^-|  oq-i  tion  of  the  act,  had  it  been  that  of  an  agent.  («) 
*And,  therefore,  where  the  defendant  wrote  to 
the  plaintiff  thus: — "1  am  sorry  to  give  you  so  much 
trouble  in  calling,  but  am  not  prepared  for  you,  but  will 
without  neglect  remit  you  in  a  short  time,"  but  the  note 
contained  no  address,  date,  or  amount,  it  was  held  to  be 
sufficient,  and  that  these  omitted  parts  might  be  sup- 
plied by  parol.  (^)  In  an  action  by  drawer  against 
acceptor  of  a  Bill  of  Exchange  for  £101,  defendant 
proved  that  he  was  under  age  when  he  accepted  the 
bill.  Plaintiff  then  produced  in  evidence  a  letter  in 
defendant's  handwriting,  purporting  by  its  date  to  be 
w^ritten  after  he  came  of  age,  addressed  to  a  third  per- 
son in  these  words: — "I  request  you  to  pay  H.  (the 
plaintiff)  £101  at  your  earliest  convenience  after  the 
date  of  this  letter,  from  the  money  left  me  by  my  late 
grandfather,  for  which  I  have  given  my  bill."  This  was 
held  to  amount  to  a  ratification  of  the  original  promise 
to  pay.((?)  But  the  defendant  having,  whilst  an  infant, 
accepted  a  Bill  of  Exchange,  was  applied  to  after  he 
became  of  age,  on  behalf  of  the  holder,  and  then  wrote 
to  him  as  follow^s  : — "  Your  brother  tells  me  you  are 
very  uneasy  about  the  £500  drawn  by  Mr.  P.  upon  me. 
Pray  make  yourself  easy  about  it,  as  I  will  take  care  that 
it  is  paid,  and  Sir  Henry  P.  comes  to  England  in  June." 

[a]  Harris  v.  W^all,  1  Ex.  122. 

lb)  Hartley  v.  Wharton,  11  A.  &  E.  (39  E.  C.  L.  R.)  934. 

(c)  Hunt  V.  Massey,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  902. 


SIMPLE    CONTRACTS.  139 

Held,  per  Parke,  B.,  and  Alderson,  B.,  that  this  p:n  ^^-,-1 
'"was  not  a  ratification  to  take  the  case  out  of 
the  statute  9  Geo.  4,  c.  14,  but,  per  Piatt,  B.,  and  Mar- 
tin, B.,  that  it  was  a  ratification.  And  Parke,  B.,  said: 
"  It  amounts  to  nothing  more  nor  less  than  an  assurance 
that  the  plaintiff  may  be  calmed  in  his  feelings  on  the 
assurance  that  this  Bill  will  be  sure  to  be  paid,  and 
points  to  the  arrival  of  Sir  Henry  P.  in  England  in 
June."(c?)  Again,  where  goods  had  been  supplied  by 
the  plaintiff  to  the  defendant  whilst  he  was  an  infant, 
and,  when  the  latter  came  of  .age,  an  account,  wdth  the 
items  and  prices,  was  submitted  to  him,  at  the  foot  of 
which  he  signed  the  following:  "Particulars  of  account 
to  the  end  of  1867,  amounting  to  £16J.  lis.  Qd.,  1 
certify  to  be  corVect  and  satisfactory :"  this  was  held  not 
to  amount  to  a  recognition  of  the  debt  as  an  existing 
liability,  so  as  to  be  a  ratification  of  the  contract  within 
the  above  enactment,  (e)  It  is  Avorthy  JiQ>^ixu£jQbi;£i3!££L- 
that  this  statute  seems  to  ex.cludej^^^^  signature  of  an 
agent,  uiid  to  i(M|uire  that  of  the  infant  himself. (/) 

"Contracts  »>1'  insurance  must  also  in  general  be  printed 
or  written,  whether  the  contract  be  a  marine,  fire,  or 
life  insurance.  (^) 

"■"Another  case  is  that  of  a  promise  to  pay  a  p-n  4-1-1 
debt  barred  by  the  Statute  of  Limitations  ;  but, 
as  I  shall  have  occasion  to  speak  again  of  that  statute 
before  the  conclusion  of  these  lectures,  I  shall  reserve 
what  I  have  to  say  regarding  the  writing  by  which  its 
operation  may  be  defeated. 

id)  Mawson  v.  Blane,  23  L.  J.  (Ex.)  ?A2  -.  10  Ex.  20(i. 

(e)  Rowe  v.  Hopwood,  L.  R.  4  Q.  B.  1  ;  38  L.  J.  (Q.  B.)  1. 

(/)  Hyde  V.  Johnson,  2  Ring.  X.  C.  (29  E.  C.  L.  R.)  776 ;  see  7  M.  & 
G.  (49  E.  C.  L.  R.)  88. 

{g)  30  &  31  Vict.  c.  23,  s.  7,  Sea  •,  see  14  Geo.  3,  c.  78,  Fire ;  ami  14 
Geo.  3,  c.  48,  Life. 


141  smith's  law  of  contracts. 

Now,  these  are  the  principal  cases  in  which  the  law 
of  England  requires  that  particular  contracts  should  be 
reduced  into  writing ;  not  that  they  are  the  only  ones, 
for  there  are  many  statutes  making  writing  necessary 
in  certain  particular  transactions,  but  these  are  the  cases 
of  most  frequent  occurrence,  and  therefore  fittest  to  be 
here  mentioned. 

HaA^ng  now,  therefore,  pointed  out  to  you  the  prac- 
tical distinction  which  exists  between  written  and 
verbal  contracts,  though  both  of  them  alike,  if  not  sealed 
and  delivered,  rank  but  as  simple  contracts,  it  is  time  to 
touch  on  some  points  which  apply  to  all  simple  contracts 
alike. 

The  first  point  to  be  remarked  will,  perhaps,  at  first 
sight,  be  considered  as  nearly  self-evident,  but  much 
difficulty  does,  in  fact,  arise,  from  not  attending  to  it ; 
and,  upon  a  little  consideration,  it  wiU  appear  important, 
to  be  borne  in  mind :  it  is  this,  that  the  parties  to  the 
contract  must  mutually  assent  to  the  same  thing,  (h) 
r*l  J-9T  "-^  contract,"  says  Pothier,  "  includes  a  "^con- 
currence of  intention  in  two  parties,  one  of 
whom  promises  something  to  the  other,  who  on  his  part 
accepts  such  promise."  Hence,  assent  or  acceptance  is 
indispensable  to  the  validity  of  every  contract ;  for,  "  as 
I  cannot,"  continues  Pothier,  "  by  the  mere  act  of  my 
own  mind  transfer  to  another  a  right  in  my  goods,  with- 
out a  concurrent  intention  on  his  part  to  accept  them, 
neither  can  I  by  my  promise  confer  a  right  against  my 
person  until  the  person  to  whom  the  promise  is  made 
has,  by  his  acceptance  of  it,  concurred  in  the  intention 
of  acquiring  such  right."  Wherever  there  is  not  an 
assent,  express  or  implied,  to  the  terms  of  the  proposed 

[h]  See  Jordan  W.Norton,  4  M.  &  W.   155,  ante,  p.  133;  Forster  v. 
llowland,  30  L.  J.  (Ex.)  39G  :  Felthouse  v.  Bindby,  31  L.  J.  (C.  P.)  204. 


SIMPLE    CONTRACTS.  142 

contract  by  both  parties,  there  is  no  mutuality,  and  no 
contract.  Thus,  where  the  declaration  stated  that  J.  A. 
was  indebted  to  the  plaintiff,  and  that  the  defendant's 
agent,  by  written  instrument,  promised  the  plaintiff  as 
follows — "  Mr.  A.,  the  defendant,  offers  to  pay  a  com- 
position of  75.  in  the  £  on  your  account  against  his 
nephew,  J.  A.,  on  your  giving  proper  indemnification  to 
both.  In  the  event  of  your  accepting  the  offer  I  will 
thank  you  to  forward  me  full  particulars  of  your  account, 
in  order  that  the  same  may  be  properly  examined ;"  that 
the  plaintiff  accepted  the  offer  of  the  defendant,  and  for- 
warded the  full  particulars  of  his  account,  and  had 
always  been  ready  and  offered  to  give  a  proper  indem- 
nification to  J.  A.  and  the  defendant,  yet  the  defendant 
did  not  pay  the  composition  :  this  declaration  was  held 
bad  upon  demurrer,  as  showing  nothing  more  r:::-|4-T] 
*than  an  overture.  Indeed,  the  very  leaving  of 
the  terms  of  the  indemnity  -open  shows  it  to  be  incom- 
plete. Clearly  the  defendant  never  intended  to  pay  un- 
less he  got  such  an  indemnity  as  he  should  think  pro- 
per, not  what  the  plaintiff  or  a  third  person  should  think 
sufficient.  (/) 

The  assent  to  a  contract  must  be  to  the  precise  terms 
offered.  Where  one  party  proposes  a  certain  bargain, 
and  the  other  agrees  subject  to  some  modification  or 
condition,  there  is  no  mutuality  of  contract  until  there 
has  been  an  assent  to  it  so  modified;  otherwise  it  would 
not  be  obligatory  on  both  parties,  and  would  therefore 
be  void.(^)    There  is  a  clear  distinction  between  a  mere 

{i)  Cope  V.  Albinson,  22  L.  J.  (Ex.)  37  ;  8  Ex.  185 ;  M'lver  v.  Rich- 
ardson, 1  M.  &  S.  557;  Mozley  v.  Tinkler,  1  C,  M.  &  R.- 692 ;  Russell  o. 
Thornton,  29  T..  J.  Ex.  9  ;  30  L.  J.  (Ex.)  69  ;  see  the  judgment  of  Kin- 
dersley,  V.  C,  in  Re  Leeds  Bunking  Company,  35  L.  -J.  (Ch.)  75 ; 
Oriental  Island  Steam  Company  «j.  Briggs,  31  L.  .J.  (Ch.)  241. 

{k)  Jordan  v.  Norton,  4  M.  &  W.  155  ;  Cooke  v.  Oxley,  3  T,  R.  653  ; 


143  smith's  law  of  contracts. 

proposal  and  an  agreement  to  sell.  As  in  Cook  v.  Oxley, 
where  the  defendant  offered  goods  to  the  plaintiff,  and 
gave  him  till  four  o'clock  in  the  afternoon,  the  plaintiff 
did  not  within  the  time  express  that  he  acceded  to  the 
proposal,  and  was  therefore  held  not  entitled  to  sue  the 
r*1 4-4.1  c^^f^^^clant  for  non-delivery  of  the  *goods.  The 
engagement  was  all  on  one  side,  and  the  defend- 
ant had  a  right  until  four  o'clock  to  sell  the  goods  to  any 
other  person.  (/)  In  like  manner,  where  a  broker  sold 
on  Saturday  certain  goods  of  the  defendant  to  the  plain- 
tiff, subject  to  the  plaintiff's  approval  of  the  quality  on 
Monday,  and  sent  the  sold  note  to  the  plaintiff  on  Sat- 
urday marked  with  the  words  "  quality  to  be  approved 
on  Monday,"  and  the  plaintiff  not  having  approved  or 
disapproved  on  the  Monday,  the  broker,  a  few  days 
after,  sent  the  sold  note  to  the  defendant  with  those 
words  struck  out,  and  the  defendant  then  repudiated  the 
engagement :  it  was  held  that  he  had  no  right  to  do  so, 
for  the  plaintiff,  not  having  signified  his  disapproval  on 
Monday,  was  then  bound  by  it,  and  the  engagement, 
being  mutual,  was  a  perfect  contract.  This  case,  it  will 
be  observed,  differs  from  Cooke  v.  Oxley,  which  was  an 
offer  to  sell  not  accepted  within  the  time  given.  Here 
was  not  merely  an  offer  to  sell,  but  the  buyer  had  an 
option  of  renouncing  the  purchase  on  Monday,  and  not 
having  renounced,  the  contract' had  become  absolute,  (m) 
The  case  of  Routledge  v.  Grant (w)  is  also  a  good  ex- 
ample of  this  principle.  Grant  offered  to  purchase 
Routledge's  house,  requiring  possession  on  the  25th  of 

Re  Leeds  Banking  Company,  Mallorie's  case,  36  L.  J.  (Ch.)  141 ;  L.  R. 
2  Ch.  181  ;  Re  Universal  Banking  Corporation  ex  parte  Gunn,  37  L.J. 
(Ch.)  40;  Re  Saloon  Steam  Packet  Co.  ex  parte  Fletcher,  Ibid.  49. 

(I)  3  T.  R.  653. 

[m)  Humphries  v.  Carvalho,  16  East  45. 

(h.)  4  Bing.  (13  E.  C.  L.  R.)  653. 


SIMPLE    CONTRACTS.  144 

July,  and  a  definite  answer  in   six  weeks ;' Routledge 
accepted  the  offer,  with  possession  on  the  1st    r:}:-|4^fr-i 
of  ^August;  Grant  afterwards,  within  the  six 
weeks,  retracted  his  offer,  and  it  was  held  that  he  had  a 
right  to  do  so. 

The  party  who  made  the  offer  has  a  right  to  say, 
''^  Non  lioec  in  foedera  veni ;'  and  to  decline  any  other 
baro'ain  than  that  which  he  offered.  Where  an  offer  is 
accepted  in  the  terms  in  which  it  w\as  made,  the  con- 
tract is  binding  on  both  parties.  At  any  time  before  it 
is  accepted  the  offer  may  be  rescinded,  but  not  after- 
wards, (o)  .The  importance  of  ascertaining  accurately 
that  the  offer  which  the  one  party  has  made  has  not 
been  altered  by  any  term  or  stipulation  introduced  by 
the  other  in  accepting  it,  is  so  great,  that  another  ex- 
ample or  two  will  be  useful.  Thus,  a  broker  sold  to 
Cowie,  of  Calcutta,  a  quantity  of  indigo,  and  drew  up 
a  sold  note  addressed  to  the  vendor,  who  having  ob- 
jected to  a  particular  word,  Cowie  struck  his  pen  through 
it,  placing  his  initials  over  the  erasure,  and  returned  it 
to  the  broker,  who  delivered  it  so  altered  to  the  vendor. 
The  broker  afterwards  delivered  to  Cowie  a  bought  note 
which  differed  materially  from  the  sold  note.  In  an 
action  brought  by  the  vendor  against  Cowie  for  non- 
performance of  the  contract  as  stated  in  the  sold  note, 
the  Supreme  Court  at  Calcutta  considered  that  the  sold 
note  formed  the  contract,  and  found  for  the  plaintiff; 
but  the  judicial  committee  of  the  Privy  Council,  upon 
Appeal,  considered  that  the  parties  intended  r:;:-]  4^/^-1 
the  bought  and  sold  notes  together  to  form  the 
agreement  between  the  parties,  notwithstanding  Cowie's 
alteration  of  the  sold  note,  and  consequently,  that  there 
being  a  material  variation  in  the  terms  of  the  bought 

(0)  Cooke  v.  Oxley,  3  T.  K.  653. 


146  smith's  law  of  contracts. 

and  sold  notes,  they  did  not  together  constitute  a  bind- 
ing contract,  (j?)  In  another  case,  a  broker,  acting  for 
the  phiintiff,  verbally  contracted  to  buy  certain  hemp 
of  the  defendant,  and  sent  him  a  note  stating  the  terms, 
commencing  thus : — "  Sold,  for  Campbell  (the  defendant), 
to  Moore  (the  plaintiff),  50  tons  of  Petersburgh  clean 
hemp,  ex  G.  G.  to  arrive,  at  £34  per  ton,  payment  at 
the  option  of  the  buyer  by  acceptance  on  London  at  six 
months  from  delivery,  or  cash  in  14  days  less  2i  per 
cent.,  to  be  taken  from  the  quay  at  the  landing  weights, 
and  to  be  a  fair  average  quality  of  the  season."  The 
defendant  sent  back  another  note  in  these  words  : — •'  I 
have  this  day  sold,  through  you,  to  M  ,  50  tons  Peters- 
burgh clean  hemp,  expected  to  arrive  per  G.  G.,  at  £34 
per  ton  from  the  quay.  If  the  ship  is  lost,  or  the  hemp 
damaged  on  the  voyage,  this  contract  to  be  considered 
void  for  such  quantity  Jis  may  be  lost  or  damaged.  The 
quality  to  be  of  an  average  of  the  season,  and  if  any 
dispute  arises,  the  same  to  be  settled  by  arbitration. 
Payment,  six  months'  acceptance,  or  cash  in  14  days 
less  2i  per  cent,  discount,  at  the  buyer's  option.  Cus- 
r*1A7l  tomary  ^allowances."  The  plaintiff  sued  for 
non-delivery  of  the  hemp,  treating  the  note 
signed  by  the  defendant  as  the  contract,  and  it  was  held 
that  the  liability  of  the  defendant  depended  upon  the 
(question  of  fact,  whether  the  note  signed  by  him  was 
intended  by  both  i^arties  to  be  the  contract,  in  which 
case  he  would  be  liable,  or  whether  the  defendant  only 
intended  to  be  bound  as  the  seller,  provided  the  plain- 
tiff should  also  sign  a  note  to  bind  himself  as  the  buyer. 
"  If  this  were  a  case,"  said  Parke,  B.,  in  delivering  the 
judgment  of  the  Court  of  Exchequer,  "  in  which  the 
plaintiff  sought  to  prove  a  contract  by  means  of  bought 

[p)  Cowie  V.  Remfry,  5  Moore  (P.  C.)  232. 


SIMPLE    CONTRACTS.  147 

and  sold  notes,  made  by  a  broker  for  both  parties,  he 
must  have  failed,  for  the  two  notes  disagree,  and  there 
would  have  been  no  valid  contract.  This,  however,  is 
not  the  case  of  a  contract  entered  into  by  a  broker  for 
the  buyer  and  seller ;  the  person  who  made  the  contract 
was,  indeed,  a  broker,  but  he  acted  solely  for  the  plain- 
tiff. The  plaintiff  then  insists  that  the  note  signed  by 
the  defendant  is  the  contract,  and  if  it  be  true  that  this 
was  intended  by  both  parties  to  be  the  contract  between 
them,  the  defendant  would  be  bound  as  a  party  to  be 
charged,  and  the  memorandum  would  be  sufficient  within 
the  Statute  of  Frauds.  But  if  Campbell,  the  defendant, 
never  intended  to  be  bound  as  the  seller  unless  Moore 
was  also  bound  as  the  buyer,  and  meant  that  Moore 
should  sign  the  note  on  his  part  to  bind  him,  then  there 
was  no  valid  contract  between  '='them."(^)  That  p.-.-.  ,0-1 
the  acceptance  of  the  offer,  in  order  to  be  bind- 
ing, must  not  be  qualified  by  any  fresh  stipulation  not 
contained  in  the  offer,  has  also  been  strongly  shown  in 
contracts  for  the  purchase  of  scrip  and  shares.  These 
contracts  are  often  made  by  letters,  the  intended  pur- 
chaser applying  by  letter  for  shares,  and  the  answer, 
after  complying  with  this  request,  going  on  to  stipulate 
that  the  shares  should  not  be  transferable,  or  adding 
some  term  not  contemplated  by  the  applicant,  (r)  In 
such  cases,  in  the  absence  of  assent  to  the  additional 
stipulation,  the  contract  would  be  void;  and  no  such 
allottee  could  be  sued  on  the  transaction,  for  the  stipu- 
lation was  clearly  not  implied  in  the  agreement  to  take 
the  shares. 

iq)  Moore  t'.  Campbell,  10  Ex.  323;  23  L.  J.  (Ex.)"  310;  see  Iley- 
worth  V.  Knight,  33  L.  J.  (C.  P.)  298. 

(r)  Wontner  v.  Shairp,  4  C.  B.  (56  E.  C.  L.  R.)  404  ;  Walstab  o.  Spot- 
tiswood,  15  M.  &  W.  501  ;  Vollabs  v.  Fletcher,  1  Ex.  20  ;  Duke  v.  An- 
drews, 2  Ex.  290  ;  Chaplin  v.  Clarke,  4  Ex.  403  ;  Re  Direct  Birmingham 
Railway  Company,  ex  parte  Capper,  19  L.  J.  (Ch.)  394. 


148  smith's  law  of  contracts. 

Where  the  offer  of  a  contract  is  made  by  letter,  the 
offerer  must  be  considered  as  making  during  every  in- 
stant of  the  time  his  letter  is  travelling  the  same  iden- 
tical  offer  to  the  receiver.  (5)  In  like  manner  the  re- 
ceiver's acceptance  of  the  contract  is  complete  Avhen  in 
due  time  he  sends  his  answer.  This  due  time  is  ascer- 
tained by  the  usage  of  trade,  by  the  actual  stipulation 
r*14Q1  ^^  ^^®  parties,  or  by  what  is  *a  reasonable  time 
under  the  circumstances.  (^)  When  the  post  is 
either  directly  or  impliedly  appointed  by  the  party 
making  the  offer  to  be  the  channel  of  communication, 
the  contract  is  complete  when  the  letter  accepting  the 
offer  is  posted,  at  all  events  if  the  letter  of  acceptance 
reaches  its  destination,  though  after  a  delay  caused  by 
circumstances  over  which  the  sender  has  no  control. 
Thus,  in  Dunlop  ^'.  •Higgins,(M)  an  offer  had  been  made 
by  a  house  at  Glasgow  of  2000  tons  of  iron  to  a  house 
at  Liverpool.  The  latter  answered  the  offer  by  a  letter 
saying,  "  We  will  take  the  2000  tons  of  iron  you  offer 
us."  The  letter  was  put  into  the  post-office  at  Liver- 
pool on  the  30th  of  January,  and,  in  regular  course, 
ought  to  have  been  delivered  at  Glasgow  on  the  31st; 
but  on  account  of  the  state  of  the  roads,  it  was  not 
delivered  till  the  1st  of  February.  The  House  of 
Lords  held  that,  having  been  posted  on  the  proper  day, 
it  was  accepted  in  due  time,  and  the  sellers  were  bound 
by  their  offer.  It  is  obviously  involved  in  the  state  of 
law  just  described,  that,  until,  acceptance,  the  offerer 
may  revoke  his  offer ;  [x)  but  that  a  letter  countermand- 
ing the  offer  after  the  letter  of  acceptance  has  been 

[s)  Adams  v.  Lindsell,  1  B.  &  A.  681. 

{t)  Adams  v.  Lindsell,  supra;  Meynell  v.  Surtees",  25  L.  J.  (Ch.)  259. 
{u)  H.  of  L.  C.  381. 

[x)  Cooke  V.  Oxley,  3  T.  R.  653 ;  Routledge  v.  Grant,  4  Bing.  (13  E. 
C.  L.  R.)  653 ;  Warner  v.  Harrison,  28  L.  J.  (Q.  B.)  18. 


CONSIDERATION    OF    PROMISES.  150 

posted  would  be  too  late.(^)  But  if  the  ^letter  p-i  ^q-i 
accepting  the  contract  is  put  into  the  post-office, 
but  by  the  negligence  of  the  jjost-office  authorities  is 
lost,  would  the  contract  then  be  complete  ?  The  Court 
of  Exchequer  in  The  British  and  American  Tel.egi'aph 
Co.  V.  Colson,(^)  seem  to  have  thought  not ;  but  the 
better  opinion  seems  now  to  be  that  it  would.  («)  The 
acceptance  of  the  offer,  however,  in  order  to  be  binding, 
must  not  be  qualified  by  some  stipulation  not  contained 
in  the  offer. ^ 

I  have  already  stated  to  you  that  one  of  the  main 
distinctions  between  a  contract  by  deed  and  a  simple 
contract  is,  that  the  latter  requires  a  conBideration  to  sup- 
port it,  the  former  not.  And  here  it  is  proper  to  observe, 
incidently,  that  when  I  say  that  a  contract  by  deed  does 
not  require  a  consideration  to  support  it,  I  mean  to  say 
that  it  does  not  require  a  consideration  for  the  purpose 
of  binding  the  party  who  executes  it,  and  rendering  him 
liable.  I  do  not  by  any  means  intend  that  you  should 
understand  that  a  consideration  may  not  come  to  be  a 
most  important  ingredient  in  a  contract  by  deed,  as  be- 
tween parties  claiming  a  benefit  under  that  deed  and 
other  parties  having  conflicting  claims  upon  the  person 

[ij)  Re  Imperial  Land  Company  of  Marseilles,  Harris's  case,  L.  R.  7 
Ch.  App.  587  ;  41  L.  J.  (Ch.)  621. 

[z]  L.  R.  6  Ex.  108  ;  40  L.  J.  Ex.  97. 

(a)  See  the  judgments  of  James  and  Mellish,  Lords  JJ.  in  Harris's 
case  cited  above.  See  also  Wall's  case,  re  the  same  company,  L.  R.  15 
Eq.  18;  42  L.J.  (Ch.)  372. 

'  As  to  contracts  by  letter,  see  Abbott  v.  Shepard,  48  N.  H.  14  :  Stock- 
ham  V.  Stockham,  32  Md.  196  ;  Brown  v.  N.  Y.  R.  R.  Co.,  44  X.  Y.  79 ; 
Chicago  R.  R.  Co.  v.  Dane,  43  Ibid.  240 ;  Knight  v.  Cooley,  34  Iowa 
218.  As  to  contracts  by  telegraph,  see  Trevor  v.  Wood,  41  Barb.  (N. 
Y.)  255  ;  36  N.  Y.  307  ;  Beach  v.  Raritan  R.  R.  Co.,  37  N.  Y.  457  ;  Wells 
V.  Milwaukee  R.  R.  Co., '30  Wis.  605;  Duble  v.  Botts,  38  Tex.  312;  De- 
shon  V.  Fondick,  1  Wood  286. 


151 


SMITH  S    LAW   OF    CONTRACTS. 


[*151] 


executing  it.     *For  instance,  the  statute  of  the 


13th  Eliz.  c.  5,  renders  a  great  variety  of  deeds 
(if  made  without  a  valuable  consideration)  void  as 
against  creditors;  and  this  statute  (which  Lord  Mans- 
field has  said  is  only  declaratory  of  the  Common  Law) 
is  founded  on  a  perfectly  righteous  and  equitable  prin- 
ciple ;  for  how  absurd  and  unjust  would  it  be  to  allow  a 
man  to  defeat  the  claims  of  his  real  creditors  by  enter- 
ing into  obligations  to  persons  who  had  never  parted 
with  any  value  at  all.  When,  therefore,  I  say  that  a 
deed  is  good  tvithout  consideration,  I  do  not  mean  to  say 
that  it  stands  for  all  purposes  on  the  same  footing  as  an 
instrument  for  which  value  has  passed ;  but  what  I  mean 
that  you  should  understand  is  this — that,  where  the  in- 
terests of  third  parties  are  not  affected,  but  the  ques- 
tion is  between  the  person  who  entered  into  the  con- 
tract, and  the  person  with  whom  it  is  made,  there  a  man 
cannot  defend  himself  against  a  promise  made  by  deed, 
by  saying  that  he  received  no  consideration  for  it, 
although  he  might  defend  himself  upon  that  ground 
against  the  very  same  promise  if  it  had  been  made  by 
simple  contract.  I  cannot,  I  think,  put  a  better  example 
of  this  than  that  which  I  put  in  a  former  lecture  : — A. 
owes  B.  £50.  Now,  if  I  write  upon  a  piece  of  paper 
as  follows  : — 

"  I  promise  A.  that  I  will  discharge  for  him  the  debt 
due  from  him  to  B.," 
and  give  him  the  paper  so  written,  here  is  a  simple  con- 


[*152] 


tract  without  any  consideration  for  it ;  and,  if  I 


*fail  to  perform  the  promise,  no  action  will  lie 
against  me,  because  a  simple  contract  founded  upon  no 
consideration  cannot  be  enforced :  and  yet,  if  I  had 
sealed  that  very  slip  of  paper,  and  delivered  it  to  A.  as 
my  act  and  deed,  an  action  of  covenant  would  have  lain 


CONSIDERATION   OF   PROMISES.  152 

against  me  had  I  afterwards  failed  in  performing  it; 
and  to  that  action  it  would  have  been  no  defence  to  say 
that  I  received  no  consideration  for  my  undertaking :  I 
might  say,  that  I  had  been  imposed  upon,  and  persuaded- 
to  execute  it  by  A.'s  fraud;  or  I  might  say,  that  the 
debt  due  to  B.  was  an  illegal  one,  and  that  my  promise 
was  made  in  pursuance  of  an  illegal  arrangement ;  but 
that  the  promise  was  without  consideration  would  be  a 
defence  of  which,  the  contract  being  by  deed,  I  could 
not  be  allowed  to  avail  myself/ 

But  a  simple  contract  is,  as  I  have  said,  incapable  of 
becoming  the  subject  of  an  action  unless  supported  by 
a  consideration.^     Ex  niido  i^acto  non  oritur  actio  is  an 


^  It  has  been  before  stated,  that  in  some  of  the  United  States,  the  ob- 
ligoi'  of  a  specialty  is,  by  statutory  enactment,  permitted,  under  some 
restrictions,  to  show  its  failure,  as  at  common  law,  he  could  its  illegality 
of  consideration. — r. 

-  Ames  t'. -Taylor,  49  Me.  3S1  :  Richardson  v.  Williams,  Ibid.  558  : 
Dorwin  v.  Smith,  35  Verm,  69  ;  Smith  v.  Rogers,  Ibid.  140  ;  Newhall  v. 
Paige,  10  Gray  366  ;  Carr  v.  Card,  34  Miss.  513  ;  Conover  v.  Stillwell, 
34  N.  J.  (Law)  54;  Glasgow  v.  Hobbs,  32  Ind.  440;  Worth  v.  Carr,  42 
N.  Y.  362.  Gratuitous  promises  or  propositions  to  pay  money  upon  con- 
dition become  binding  upon  acceptance  and  performance  of  the  stipu- 
lated condition  :  Van  Rensselaer  v.  Aiken,  44  Barb.  547.  An  agreement 
by  a  creditor  to  accept  part  of  a  debt  as  payment  of  the  whole,  is  nudam 
2juctum  and  void  :  Watt  v.  Frincke,  4  Green  407.  An  agreement  by  the 
promisee  of  a  maturing  note  to  extend  the  time  of  payment  at  the  rate 
of  interest  specified  in  the  note,  upon  the  payment  of  a  certain  sum  per 
month  upon  the  principal  is  not  valid  :  Woodford  v.  Dow,  34  111.  424. 
A  contract  to  exchange  unequal  sums  of  money  when  there  is  no  other 
element  is  not  binding  :  Shepard  v.  Rhodes,  7  R.  I.  470.  Where  one 
does  voluntarily  and  without  request  that  which  he  is  not  compellable 
to  do  for  another  who  is  compellable  to  do  it,  as  if  one  who  is  not  bound 
in  any  way  pays  a  debt  due  from  another,  the  law  will  if  there  be  a  sub- 
sequent promise  to  repay  the  money,  imply  the  previous  request,  but  it 
will  not  imply  both  the  promise  and  request :  Bevan  v.  Tomlinson,  25 
Ind.  253.  A  person  cannot  make  another  his  debtor  by  paying  the  debt 
of  the  latter  without  his  request  or  consent :  Richardson  v.  Williams,'  49 
Me.  558. 


152  smith's  law  of  contracts. 

old  and  well-established  maxim  of  our  law,  as  well  as  of 
the  civil  law-,  and  has  beeij  illustrated  by  a  great  variety 
of  cases  from  time  to  time:(^)  thus  it  has  been  laid 
down  by  Lord  Kenyon,(c)  that  a  promise  made  by  the 
captain  of  a  ship  to  one  of  his  seamen,  when  the  ship 
r*1  ^R1  ^^^  ^^  ^extraordinary  danger,  to  pay  him  an 
extra  sum  of  money  as  an  inducement  to  extra 
exertion,  was  a  void  promise;  because  every  seaman  is 
bound  to  exert  himself  to  the  utmost  for  the  safety  of 
the  ship,  and  therefore  the  captain  would  get  nothing 
from  the  seaman  in  exchange  for  his  promise  except 
that  which  the  .seaman  w^as  bound  to  do  before.^  And 
it  has  been  held,  that  interest,  being  by  mercantile  usage 
payable  upon  balances,  an  agreement  in  consideration  of 
interest  upon  a  balance  to  give  an  extended  time  for 
paying  it,  was  merely  void.(c?)  The  documents  put  in 
by  the  defendant,  said  Parke,  B.,  showed  that  interest 
was  payable  at  the  time  of  the  contract,  and  therefore 
there  was  no  consideration  for  that  contract. 

The-  reason  for  the  strictness  with  which  this  rule  of 
law — that  there  must  be  a  consideration  to  support  a 
simple  contract — is  enforced,  is,  to  guard  persons  against 
being  drawn  hastily  and  inconsiderately  into  engagements 
which  may  prove  ruinous  to  them.  The  law  does  not 
absolutely  prohibit  them  from  contracting  a  gratuitous 
obligation,  for  they  may,  if  they  will,  do  that  by  deed ; 
and  it  is  thought  that  a  deed  being  an  instrument  re- 

(6)  Westhead  v.  Sproson,  30  L.  J.  (Ex'.)  265  ;  M'Manus  v.  Bark,  L.  R. 
5  Ex.  65  ;  39  L.  J.  (Ex.)  65. 

(c)  Harris  f.  Watson,  Peake  72;  Harris  v.  Carter,  23  L.J.  (Q.  B.) 
295  ;  3  E.  &  B.  (77  E.  C.  L.  R.)  559 ;  see  Clutterbuck  v.  Coffin,  3  M.  & 
G.  (42  E.  C.  L.  R.)  842 ;  Hartley  v.  Ponsonby,  26  L.  J.  (Q.  B.)  322. 

{d)  Ormew.  Galloway,  23  L.  J.  (Ex.)  118  ;  9  Ex.  544. 

^  And  to  the  same  effect  were  Newman  v.  Walters,  3  B.  &  P.  612  ; 
Stilk  V.  Myriok,  2  Caiup.  317  ;  Smith  v.  Bartholomew,  1  Mete.  278. — r. 


CONSIDERATION   OF   PROMISES.  153 

quiring  more  of  ceremony  and  formality,  and  sealing 
being  considered  all  over  Christendom  as  an  act  of  much 
solemnity,  and  as  suggesting  the  contract  to  be  extraor- 
dinary and  important,  more  *opportunity  for  r-.,.-.rA-, 
thought  is  afforded  to  the  party  executing  it  ■-  -^ 
than  to  a  person  entering  into  a  simple  contract,  and, 
consequently,  that  it  is  not  unreasonable  to  give  it  a 
more  stringent  operation; 

The  reason  of  the  Law  of  England  on  this  point-^one 
of  the  most  important  in  our  entire  system — is  very 
clearly  explained  in  the  judgment  of  the  Court  of 
Queen's  Bench  in  Eastwood  v.  Henyon,(e)  the  case 
which  I  before  mentioned  with  reference  to  the  4th  sec- 
tion of  the  Statute  of  Frauds. 

The  Lord  Chief  Justice  remarks,  in  that  case,  that 
"the  eminent  counsel  who  argued  for  the  plaintiff  in  Lee 
V.  Muggeridge,(/)  spoke  of  Lord  Mansfield  as  having 
considered  the  rule  of  nudum  imcium  too  narrow,  and 
maintained,  that  all  promises  deliberately  made  ought  to 
be  binding  at  law ;"  as  they  certainly  are  in  honor  and 
conscience.  But  the  Chief  Justice  continues  :  "  The 
enforcement  of  such  promise  at  law,  however  plausibly 
reconciled  by  the  desire  to  carry  into  effect  all  consci- 
entious engagements,  might  be  attended  with  mischiev- 
ous consequences  to  society — one  of  which  would  be  the 
frequent  preference  of  voluntary  undertakings  to  claims 
for  just  debts.^     Suits  would  thereby  be  multiplied,  and 

(ej   11  Ad.  &  E.  (39  E.  C,  L.  R.)  43S,  450 ;  9  L.  J.  (Q.  B.)  409,  412. 
( /')  5  Taunt.  (1  E.  C.  L.  R.)  36.     The  counsel  were  Mr.  Serjt.  Lens, 
and  Mr.  Serjt.  Best,  afterwards  Lord  Wynford. 

^  Thus  services  voluntarily  done  by  one  for  another,  without  his  pri- 
vity ur  consent,  aflbrd  no  ground  for  an  action,  however  meritorious 
they  may  be,  as,  for  instance,  in  saving  his  property  from  fire :  Bar- 
tholomew V.  Jackson,  2  Johns.  38  •,  or  by  doing  additional  work  to  a 
particular  job  :  Hart  r.  Norton,  1  M'Cord  '2:1. — r. 

AVhen,  however,  an  actual  benefit  is  derived  from  the  unsolicited  ser- 


154  smith's  law  of  contracts. 

voluntary  undertakings  would  be  also  multiplied,  to  the 
prejudice  of  real  creditors.  The  temptations  of  execu- 
r*i  f;'--]  tors  would  *be  much  increased  by  the  prevalence 
of  such  a  doctrine,  and  the  faithful  discharge 
of  their  duty  be  rendered  more  difficult." 

Perhaps,  it  may  be  added,  that  if  this  rule  were  not 
law,  an  expression  of  present  intention,  or  mere  good 
will,  of  no  more  than  opinion,  (//)  or  even  a  civil  and  in- 
direct refusal,  would  continually  be  made  the  grounds 
of  actions ;  for  no  one  can  have  seen  much  of  society,  or 
attended  much  in  Courts  of  Justice,  without  having 
observed  how  frequently  such  expressions  are  taken  by 
the  recipient  in  a  sense  very  much  more  favorable  to 
his  interest  and  wishes  than  they  were  intended  by  the 
utterer  to  bear.(/z) 

Now,  with  regard  to  the  question —  What  does  the  law 
of  England  recognise  as  a  consideration  capable  of  support- 
ing a  simple  contract?  The  best  and  most  practical 
answer  is, — Ani/  benefit  to  the  person  making  the  promise,  i 
or  any-  loss,  trouble  or  inconvenience  to,  or  charge  upon  the  ' 
person  to  whom  it  is  made.  Sir  Wm.  Blackstone,  in  the 
second  volume  of  his  Commentaries  (p.  444),  following 
the  arrangement  of  the  civilians,  divides  considerations 
into  four  classes  :  1st;  Do  ut  des,  where  I  give  some- 
thing that  something  may  be  given  to  me ;  2d.  Facio  ut 
facias,  where  I  do  something  that  something  may  be 
r«i  rp-|  done  for  me;  3d.  Facio  utdes,  *where  I  do  some- 
thing that  something  may  be  given  to  me;  and 

((/)  Nicholson  v.  Ricketts,  29  L.  J.  (Q.  B.)  95. 

[h)  See  Puffendorff's  Law  of  Nature,  B.  3,  cap.  5  ;  and  Shadwell  v. 
Shadwell,  30  L.  J.  (C.  P.)  97. 

vices  of  another,  it  creates  a  moral  obligation  of  sufficient  potency  to 
sustain  an  express  promise :  Greeves  v.  M'AlIister,  2  Binn.  591  ;  Clark 
f.  riei'ring,  5  Ibid.  33;  Nesmith  v.  Drum,  8  W.  &  S.  9  ;  Cunningham  v. 
Garvin,  10  Pcnn.  St.  366. 


CONSIDERATION   OF   PROMISES.  156 

4th.  Do  lit  facias,  where  I  give  something  that  some- 
thing may  be  done  for  me.  Divisions  of  this  sort  are 
useful  for  the  sake  of  arranging  our  ideas,  and  testing 
their  clearness ;  but  the  short  practical  rule  is,  as  I  have 
f-aid,  that  ani/  benefit  accruing  to  Mm  who  makes  the  pro- 
mise, or  any  loss,  trouble,  or  disadvantage  undergone  by,  or 
charge  hnposed  upon,  him  to  tvhom  it  is  made,  is  a  suffi- 
cient consideration  in  the  eye  of  the  law  to  sustain  the 
promise.  Thus,  let  us  suppose  I  promise  to  pay  B.  £50 
at  Christmas.  Now,  there  must  be  a  consideration  to 
sustain  this  promise.  It  may.be  that  B.  has  lent  me 
£50  :  here  is  a  consideration  by  way  of  advantage  to 
me.  It  may  be  that  he  has  performed,  or  has  agreed  to 
perform,  some  laborious  service  for  me  :  if  so,  here  is  a 
consideration  by  way  of  inconvenience  to  him,  and  of 
advantage  to  me  at  the  same  time.  It  may  be  that  he 
is  to  labor  for  a  third  person  at  my  request ;  here  will 
be  inconvenience  to  him  without  advantage  to  me  :  or. 
it  may  be  that  he  has  become  surety  for  some  one  at  my 
request ;  here  is  a  charge  imposed  upon  him.  Any  of 
these  will  be  a  good  consideration  to  sustain  the  pro- 
mise on  my  part.  Illustrations  of  this  rule  you  may 
collect  from  various  instances,  among  which  I  will  refer 
you  to  Williamson  v.  Clements,  (/)  where  the  r:i:-|  r;'?-] 
defendant  being  indebted  *to  the  plaintiff  on  a 
bill  of  exchange  indorsed  to  him,  the  plaintiff  having 
lost  that  bill,  gave  to  the  defendant,  at  his  request,  a 
bond  acknowledging  that  the  bill  was  paid,  and  contain- 
ing a  condition  for  indemnifying  the  defendant  against 
his  afterwards  being  compelled  to  pay  the  bill ;  and  the 
defendant,  in  consideration  thereof,  promised  the  plain- 
tiff to  pay  him  the  amount  of  the  bill.  It  will  be  ob- 
served, that  it  was   a  detriment  to  the  plaintifP  to  ac- 

(i)  1  Taunt.  523 
12 


157  smith's  laav  of  contracts. 

knowledge  the  bill  to  have  been  paid,  since  he  thereby 
gave  np  any  claim  upon  the  bill  which  he  might  other- 
wise have  had  if  he  had  found  it.     So  in  Whitehead  v. 
Greetham,  decided  in  the  Exchequer  Chamber,  (7^:)  the 
declaration  stated  that  the  plaintiff  had  retained  the 
defendant  at  his  request  to  lay  out  £700  in  the  purchase 
of  an  annuity  for  him ;  that  the  defendant  promised  to 
lay  it  out  securely,  and  that  the  plaintiff  delivered  him 
the  money  for  that  purpose ;  and  the  Court  held  that 
there  was  a  good  consideration  for  that  promise.    It  was 
clearly  a  detriment  to  the  plaintiff  to  part  with  his  <£700. 
In  another  instance,   one   Charles   Kennedy  being  in- 
debted to  the  firm  of  Boeme  and  Smout,  and  the  plain- 
tiff having  been  appointed  by  the  Court  of  Chancery  re- 
ceiver of  the  debts  due  to  the  firm,  in  consideration  that 
the  plaintiff  would  give   to  C.  Kennedy  two  months' 
time  to  pay,  the  defendant  promised  the  plaintiff  to  pay 
r*i  p,o-i    him  at  the  "^expiration  of  that  period  should  C. 
Kennedy  not  do  so.   Here  it  is  observable,  that 
the  plaintiff  did  not  interfere  as  a  stranger  in  the  con- 
cerns of  the  firm  for  which  he  was  appointed  receiver. 
It  was  his  duty  to  require  the  debtor  to  pay,  and  the 
duty  of  the  debtor  to  pay  him.     The  contract,  therefore, 
to  forbear  to  proceed  against  the  debtor  was  a  contract 
from  which  the  plaintiff  might  incur  a  detriment,  and  it 
is  a  sufficient  consideration  for  a  contract  if  one  party 
receives  a  benefit,  or  the  other  is  exposed  to  a  detriment 
from  it.(/)     By  a  similar  course  of  reasoning,  the  case 
of  Hartly  v.  Ponsonby  was  decided, — a  case  so  nearly 
resembling  in  its  circumstances  that  of  Harris  v.  Watson, 

{k)  2  Bing.  (9  E.  C.  L.  R.)  464  ;  Shillibeer  v.  Glyn,  2  M.  &  W.  143. 

\l)  Willatts  V.  Kennedy,  8  Bing.  (21  E.  C.  L.  R.)  5  ;  Bunn  v.  Guy, 
4  East  190;  Surtees  v.  Lister,  30  L.  J.  (Ex.)  369  ;  Cooke  v.  Wright,  30 
L.  J.  (Q.  B.)  32  ;  Scotson  v.  Pegg,  30  L.  J.  (Ex.)  225. 


CONSIDERATION    OF    PROMISES.  158 

recently  mentioned,  (m)  that  many  were  startled  b}^  the 
decision,  as  if  it  had  been  inconsistent  with  the  latter. 
A  ship  being  on  a  voyage  from  Liverpool  to  Port  Philip 
and  back,  when  in  port  at  P.,  became  so  short  handed 
that  it  was  dangerous  to  life  to  proceed  with  only  the 
reduced  crew.  The  captain  being  unable  to  procure  ad- 
ditional hands,  promised  the  able  seamen  remaining, 
.who  were  under  articles  for  the  whole  voyage,  an  addi- 
tional sum  if  they  would  assist  in  taking  the  ship  to  the 
next  port.  It  was  held  that  the  seamen  were  not 
bound  to  proceed  on  the  voyage,  as  it  involved  risk  of 
life,  *and  that  the  promise  was  therefore   not  _ 

nudum  pactum,  and  was  binding  on  the  captain,  (ii)  •-  ^ 
In  this  case  it  will  be  observed  that  the  j)roceeding  in 
the  ship  which  had  been  rendered  unfit  for  the  voyage 
by  the  loss  of  a  portion  of  the  crew  was  not  obligatory 
on  the  remainder,  but  was  a  detriment  to  them  which 
they  had  not  engaged  to  undergo ;  as  well  as  a  benefit 
to  the  captain  which  he  was  not  entitled  to  demand. 
In  a  more  recent  case  the  defendant  being  in  the  employ- 
ment of  the  plaintiffs  in  one  capacity,  agreed  with  them 
to  serve  them  in  another,  it  being  understood  at  the 
time  that  the  terms  of  their  agreement  should  be  reduced 
into  writing.  He  thereupon  entered  into  the  latter 
employment,  and  being  in  it  the  written  agreement  was 
signed  by  him  stating  that  in  consideration  of  his  enter- 
ing into  the  plaintiff"s  employment  at  such  a  salary,  he 
thereby  agreed  to  do  so,  with  the  understanding  that  if 
he  performed  similar  services  for  any  other  on  the  same 
ground  he  should  pay  the  plaintiffs  the  sum  of  £50.  It 
was  argued  that  having  already  entered  -on  his  new 
employment  before  he  signed  the  agreement,  he  was  in 

(ni)  Ante,  p  152. 

(«)  26  L.  J.  (Q.  B.)  322 ;  7  E.  &  B.  (90  E.  C.  L.  R.)  872. 


159 


SMITH  S    LAW   OF    CONTRACTS. 


their  employ  on  an  implied  contract,  to  serve  them  on 
his  part,  and  to  be  paid  on  theirs,  and  consequently 
that  the  superadded  restriction  not  to  serve  other  per- 
sons was  without  consideration.  But  it  is  clear,  and 
r^lfiO"  ^^^  ^^  considered  by  the  *Court  of  Common 
Pleas,  that  the  agreement  was  not  perfected  till 
it  was  signed,  and  that  if  he  had  refused  to  sign  it  the 
plaintiffs  might  have  refused  to  employ  him  any  longer, 
and  consequently  that  the  consideration  was  really,  as 
stated  in  the  written  agreement,  his  entering  into  the 
plaintiff's  employment  at  such  a  salary,  (o) 

In_^jict  agreement  with  what  has  been  said,  this 
consideration  must  proceed  from  the  party  to  whom  the 
promise  is  made.  If  it  proceed  from  some  third  person, 
not  in  any  way  moved  or  affected  thereto  by  the  pro- 
misee, the  latter  is  a  stranger  to  the  consideration,  and 
a  promise  made  to  him  is  nudum  pactum.  Thus,  in  the 
case  of  Thomas  v.  Thomas,  (jt?)  an  action  was  brought 
upon  an  agreement  between  the  executor  of  A.  B.  and 
the  widow  of  the  testator,  which  set  out  that  the  testa- 
tor had  declared  his  wish  that  his  widow  should  enjoy 
certain  premises  for  her  life,  and  that  it  was  agreed,  in 
consideration  of  such  desire  and  of  the  premises,  that 
the  executor  should  convey  them  to  the  widow,  pro- 
vided she  would  pay  £1  towards  the  ground-rent  of 
those  and  certain  other  premises,  and  keep  the  premises 
conveyed  in  good  repair ;  and  it  was  contended,  that  the 
real  consideration  of  the  executor's  promise  was  the 
desire  to  comply  with  the  wish  of  the  testator.  The 
Court  considered  *this  no  part  of  the  considera- 


[*161] 


tion. 


"  Consideration,"  said  Mr.  Justice  Pat- 


io) Mumford  v.  Getliing,  29  L.  J.  (C.  P.)  105. 

\p)  2  Q.  B.   (42  E.  C.  L.  R.)  851.     See  Price  v.  Easton,  4  B.  &  Ad. 
(24  E.  C.  L.  K.)  433. 


CONSIDERATION   OF    PROMISES.  161 

teson,  "means  something  which  is  of  some  value  in 
the  eyes  of  the  law  moving  from  the  plaintiff.  It  may 
be  of  some  benefit  to  the  plaintiff,  or  some  detriment  to 
the  defendant,  but,  at  all  events,  it  must  be  moving 
from  the  plaintiff.  Now,  that  which  is  suggested  as  the 
consideration  here,  a  pious  respect  for  the  wishes  of  the 
testator,  does  not  in  any  way  move  from  the  plaintiff; 
it  moves  from  the  testator,  and,  therefore,  legally  speak- 
ing, it  forms  no  part  of  the  consideration."  The  follow- 
ing case  also  proceeds  on  the  same  ground.  Very  soon 
after  a  marriage  between  the  .plaintiff  and  the  daughter 
of  A.,  the  fathers  of  both  parties  agreed,  in  order  to 
supply  a  marriage  portion,  to  pay  each  of  them  a  sum 
of  money  to  the  plaintiff,  and  that  the  plaintiff  should 
have  full  power  to  sue  for  both  sums,  but  the  agreement 
was  made  by  and  between  the  two  fathers  only.  After 
the  deaths  of  both,  the  plaintiff  sued  the  executor  of 
A.  for  the  sum  which  he  had  agreed  to  pay,  but  he  was 
not  allowed  to  succeed,  as  he  was  no  party  to  the  agree- 
ment, and  no  consideration  moved  from  him.  (5') 

Provided  there  be  some  benefit  to  the  contractor,  or 
some  /os5,  trouUe,  inconvenience^  or  charge,  imposed  upon 
the  contractee,  so  as  to  constitute  a  consideration,  the 
Courts  are  not  willing  to  enter  "^into  the  ques-  pi:ip9-i 
tion  whether  that  consideration  be  adequate  in 
value  to  the  thing  which  is  promised  in  exchange  for  it.^ 

(g)  Tweddle  v.  Atkinson,  30  L.  J.  (Q.  B.)  265. 

'  Hubbard  v.  Coolidge,  1  Mete.  93  ;  Osgood  v.  Franklin,  2  Johns. 
Ch.  23  ;  s.  c.  14  Johns.  527  ;  Bedel  v.  Loomis,  11  N.  II.  9.  "  If  a  con- 
tract is  deliberately  made  without  fraud,"  said  Wilde,  J.,  in  Train  v. 
Gold,  5  Pick.  384,  "  and.with  a  full  knowledge  of  all  the  circumstances, 
the  least  consideration  will  be  sufficient." — R. 

"A  consideration  is  sufficient,"  says  Judge  Rogers,  in  Ilind  v.  Hold- 
ship,  2  Watts  104,  "if  it  arise  from  any  act  of  the  plaintiff,  from  which 
the  defendant  or  a  stranger  derives  any  benefit,  however  small,  if  such 


162  smith's  law  of  contracts. 

Very  gross  inadequacy,  indeed,  would  be  an  index  of 
fraud,  and  might  afford   evidence  of  the  existence  of 


act  is  performed  by  the  plaintiff  with  the  assent,  express  or  implied,  of 
the  defendant ;  or  by  reason  of  any  damages  or  any  suspension  or  for- 
bearance of  the  plaintiff's  right  at  law  or  in  equity  ;  or  any  possibility 
of  loss  occasioned  to  the  plaintiff  by  the  promise  of  another,  although  no 
actual  benefit  accrues  to  the  party  promising.  It  is  not  essential  that 
the  consideration  should  be  adequate  in  point  of  actual  value.  The  law 
does  not  weigh  the  quantum  of  consideration,  having  no  means  of  de- 
ciding on  that  matter  ;  and  it  would  be  unwise  to  interfere  with  the 
facility  of  contracting,  and  the  free  exercise  of  the  judgment  and  will 
of  the  parties.  The  law  allows  them  to  be  the  sole  judges  of  the  benefits 
to  be  derived  from  their  bargains,  provided  there  be  no  incompetency  to 
contract,  and  the  agreement  violates  no  rule  of  law.  There  is  no  case 
where  mere  inadequacy  of  price,  independent  of  other  circumstances, 
has  been  held  sufficient  to  set  aside  a  contract  between  parties  standing 
on  equal  ground,  and  dealing  with  each  other  without  any  imposition  or 
oppression."  And  "  the  inequality,"  says  Chancellor  Kent,  in  Osgood 
V.  Franklin,  "  amounting  to  fraud,  must  be  so  strong  and  manifest,  as  to 
shock  the  conscience  and  confound  the  judgment  of  any  man  of  common 
sense :"  Troy  Academy  v.  Nelson,  24  Verm.  189 ;  Robinson  v.  Treadgill, 
13  Ired.  39  ;  Brown  v.  Budd,  2  Cart.  442  ;  Tompkins  t?.  Phillips,  12  Ga. 
52.  The  doctrine  that  inadequacy  of  consideration  will  not  vitiate  an 
agreement  does  not  apply  to  a  mere  exchange  of  sums  of  money,  whose 
value  is  exactly  fixed,  but  to  the  exchange  of  something  in  itself  of  in- 
determinate value,  for  money,  or  perhaps  for  some  other  thing  of  in- 
determinate value.  The  consideration  of  one  cent  will  not  support  a 
promise  to  pay  six  hundred  dollars  :  Schnell  i'.  Neil,  17  Ind.  29  ;  Shep- 
ard  V.  Rhodes,  7  R.  I.  470.  It  is  enough  to  support  an  executory  con- « 
tract  that  upon  the  contingency  of  its  performance  the  requisite  con- 
sideration must  necessarily  arise  :  Poughkeepsie  Co.  v.  Griffin,  21  Barb. 
4^4.  The  execution  of  a  deed  which  conveys  nothing  is  not  a  sufficient 
consideration  to  support  a  promise  by  the  grantee  to  the  grantor  :'Mui-- 
phy  V.  Jones,  7  Ind.  529.  It  is  not  necessary  that  the  consideration 
should  pass  from  the  person  claiming  the  benefit  of  the  promise  :  Cail- 
leau  V.  Hall,  1  E.  D.  Smith  5.  A  subscription  to  a  common  object  with 
others,  though  gratuitous,  creates  a  legal  obligation :  McDonald  v. 
Gray,  11  Iowa  508;  Norton  v.  Janvier,  5  Harring.  232;  Trustees  v. 
Robinson,  21  N.  Y.  234.  An  agreement  by  which  one  party  is  subject  to 
trouble,  loss  or  inconvenience,  is  not  a  nudum  pactum  :  Findly  v.  Ray, 
5  Jones  (Law)  125  ;  Carr  v.  Card,  34  Mo.  513.  A  promise  by  one  to 
pay  part  of  another's  debt  in  discharge  of  the  whole  does  not  discharge 
it.  and  is  therefore  without  consideration  unless  that  other  be  a  party  to 


CONSIDERATION    OF    PROMISES.  162 

fraud ;  and  fraud,  as  I  have  already  stated  to  you,  is  a 
ground  on  which  the  performance  of  any  contract  may 
be  resisted.  But,  if  there  be  no  suggestion  that  the 
party  promising  has  been  defrauded  or  deceived,  the 
Court  will  not  hold  the  promise  invalid  upon  the  ground 
of  mere  inadequacy;  for  it  is  obvious,  that,  to  do  so 
would  be  to  exercise  a  sort  of  tyranny  over  the  trans- 
actions of  parties  who  have  a  right  to  fix  their  own 
Aalue  upon  their  own  labor  and  "exertions,  and  would  be 
prevented  from  doing  so  were  they  subject  to  a  legal 
scrutiny,  on  each  occasion,  on  the  question  whether  the 
bargain  had  been  such  as  £l  prudent  man  would  have 
entered  into.  Suppose,  for  instance,  I  think  fit  to  give 
£1000  for  a  picture  not  worth  £50 ;  it  is  foolish  on  my 
part ;  but,  if  the  owner  do  not  take  me  in,  no  injuri/  is 
done.     I  may  have  my  reasons.     Possibly,  I  may  think 

the  anrreeinent :  Whelan  v.  Edwards,  29  Ga.  215.  A  promise  to  induce 
one  to  comply  with  an  existing  vajid  contract  with  a  stranger  is  without 
consideration  :  Johnson  v.  Sellers,  32  Ala.  265.  Doing  that  for  which 
a  reward  is  ofifered  with  knowledge  of  the  offer  is  a  consideration  for  the 
promise  to  reward  :  Morrell  v.  Quarles,  25  Ibid.  544  ;  Ryer  v.  Stock- 
Avell,  14  Cal.  134.  A  subscription  on  the  faith  of  which  expenses  or 
liabilities  have  been  incurred,  is  binding  :  Doyle  v.  Glasscock,  24  Tex. 
2UU  :  Wayne  Institute  v.  Smith,  36  Barb.  576.  An  existing  liability  is 
a  good  consideration  for  a  promise,  whether  express  or  implied,  to  pay 
money  on  request:  Bailey  v.  Bassing,  29  Conn.  1.  Payment  by  a  debtor 
of  a  part  of  a  sum  already  due  and  payable,  is  no  legal  consideration  for 
an  agreement  to  extend  the  time  for  the  payment  of  the  residue  :  Hunt 
V.  Bloomer,  5  Drew  202  ;  Stryker  v.  Vanderbilt,  3  Dutch.  68  ;  Gibson  v. 
Irby,  17  Tex.  173  ;  M'Cann  v.  Lewis,  9  Cal.  246  ;  Leining  v.  Gould,  13 
Ibid.  598  ;  State  v.  Davenport,  12  Iowa  335.  The  payment  of  interest  in 
advance  is  sufficient  consideration  to  support  an  agreement  for  further 
forbearance  :  Dickei'son  v.  Commissioners,  6  Ind.  128  ;  Warner  v.  Camp- 
bell, 26  111.  282.  Making  a  payment  on  a  note  before  it  is  due  is  suffi- 
cient consideration  to  support  a  promise  to  extend  the  time :  Newsam 
V.  Finch,  25  Barb.  175.  A  promise  by  a  debtor  that  he  will  not  pay  a 
debt  then  past  due  until  a  future  day  named,  and  that  he  will  then  pay 
the  same  with  interest,  is  held  not  to  be  a  good  consideration  for  the,  pro- 
mise of  the  creditor  to  extend  the  time :  Kellogg  v.  Olmstead,  25  N.  Y.  189. 


162  smith's  law  of  contracts. 

that  I  am  a  better- judge  of  paintings  than  my  neigh- 
bors, and  that  I  have  detected  in  it  the  touch  of  Raphael 
or  Correggio.  It  would  be  hard  to  prevent  me  from 
buying  it,  and  hard  to  prevent  my  neighbor  from  making 
the  best  of  his  property,  provided  he  do  not  take  me 
in  by  telling  me  a  false  story  about  it.  Accordingly,  in 
the  absence  of  fraud,  mere  inadequacy' of  consideration 
p.:--.  r.  o-i  is  no  ""'ground  for  avoiding  a  contract.  You  will 
see  two  remarkable  instances  of  this  in  the 
cases  of  Bainbridge  v.  Firmstone(r)  and  Wilkinson  v. 
01iveira,(s)  in  the  former  of  which  the  defendant,  in 
consideration  that  the  plaintiff  had  consented  to  allow 
the  defendant  to  weigh  certain  boilers  of  the  plaintiff, 
promised  to  deliver  up  the  boilers  in  the  same  condition 
as  when  he  received  that  consent ;  and  the  Court  held 
that  the  consideration  was  sufficient  to  sustain  the  pro- 
mise. "  We  need  not  inquire,"  said  Lord  Denman,  C. 
J.,  "what  benefit  he  expected  to  derive.  The  plaintiff 
might  have  given  or  refused  leave."  (i()  In  the  latter  of 
these  cases  the  defendant  promised  to  give  the  plaintiff 
£1000'  for  the  use  of  a  letter  which  contained  matters 
explanatory  of  a  controversy  in  which  the  defendant 
was  engaged,  and  the  consideration  was  held  not  to  be 
inadequate  to  support  the  promise. 

There  is  an  old  case  upon  this  subject,  involving  so 
sinsrular  a  state  of  facts  that  I  cannot  forbear  mentioninsi: 
it.  It  is  called  Thornborow  v.  Whiteacre,  and  is  re- 
ported 2  Ld.  Raym.  11G4. 

It  was  an  action  in  which  the  plaintiff  declared  that 
the  defendant,  in  consideration  of  2^.  6c?.  paid  down,  and 
£4  17-s.  ^d.  to  be  paid  on  the  performance  of  the  agree- 
ment, promised  to  give  the  plaintiff  two  grains  of  rye 

(r)  8  A.  &  E.  (35  E.  C.  L.  R.)  743. 

[s]  1  Bin.cr.  N.  C.  (27  E.  C.  L.  R.)  490. 

it)  See  Smith  v.  Smith,  32  L.  J.  (C.  P.)  149. 


CONSIDERATION   OF    PROMISES.  164 

corn  on  Monday,  the  29th  of  *March,  four  on 
the  next  Monday,  eight  on  the  next,  sixteen  on  ^  J 
the  next,  thirty-two  on  the  next,  sixt3^-four  on  the  next, 
one  hundred  and  twenty-eight  on  the  next,  and  so  on 
for  a  year,  doubling  on  every  successive  Monday  the 
quantity  delivered  on  the  last  Monday. 

The  defendant  demurred  to  the  declaration  ;  and  upon 
calculation,  it  was  found  that,  supposing  the  contract  to 
have  been  performed,  the  whole  quantity  of  rye  to  be 
delivered  would  be  524,288,000  quarters ;  so  that,  as 
Salkeld  the  reporter,  who  argued  the  demurrer,  re- 
marked, all  the  rye  grown  in  the  world  would  not  come 
to  so  much.  But  the  Court  said,  that  though  the  con- 
tract was  a  foolish  one,  it  would  hold  at  law,  and  that 
the  defendant  ought  to  pay  something  for  his  folly. ^ 
The  case  was  ultimately  compromised.  I  presume,  how- 
ever, that  if,  instead  of  demurring,  the  defendant  had 
pleaded  that  he  had  been  induced  to  enter  into  the  con- 
tract by  fraud,  he  would  have  been  able  to  sustain  his 
plea;  since  it  seems  obvious,  on  the  face  of  the  thing, 
that  the  plaintiif  was  a  good  arithmetician,  who,  by  a 
sort  of  catch,  took  in  a  man  unable  to  reckon  so  well. 
Probably,  the  plaintiff  had  taken  his  hint  from  the  old 
story  regarding  the  invention  of  the  game  of  chess. 
But,  by  demurring^  the^efenda,nt  admitted  that  there 
was  no  fraud,  and,  consequently,  the  only  question  was 
"oiTtKeTalTdity  of  the  contract  in  the  absence  of  fraud ; 
so  that  the  case  presents  a  strong  example  of  p. 
the  reluctance  of  *the  Courts  to  enter  into  a  '-  -■ 
question  as  to  the  adequacy  of  consideration. 

^  So  in  the  old  case  in  which  the  horse  was  sold  for  one  barley-corn 
for  the  first  nail  in  the  horse's  shoe,  two  for  the  second,  and  so  on, 
doubling  on  each  nail,  the  jury  found,  under  the  direction  of  the  Court, 
for  8^.,  the  value  of  the  horse:  James  v.  Morgan,  1  Lev.  111. — r. 


165  smith's  law  of  contracts. 

This  relnctance  is  also  very  strongly  exemplified  by 
some  cases  turning  on  contracts  in  restraint  of  trade. 
By  the  law  of  England,  a  contract  in  general  restraint 
of  trade  is  void  ;  but  if  in  partial  restraint  of  trade  only, 
it  may  be  supported,  provided  the  restraint  be  reason- 
able, and  the  contract  founded  on  a  consideration.  And 
it  was  once  laid  down  that  the  consideration  must  be 
adequate,  and  that  the  Court  would  enter  into  the  ques- 
tion of  adequacy.  However,  they  have  lately  decided 
that  they  ought  not  to  do  so.  These  cases  are  particu- 
larly strong,  for  they  are  cases  in  which,  contrary  to 
the  general  rule  of  law,  a  consideration  is  required,  even 
though  the  contract  be  by  deed.  I  shall  Imve  occasion 
to  mention  them  ag-^in  in  a  subsequent  lecture.  At 
present,  I  will  merely  refer  to  the  decisions.  (^«) 

The  consideration  must,  nevertheless,  be  of  some  value  A 
in  contemplation  of  the  law  ;  for  instance,  if  a  man  make     I 
an  estate  at  will  in  favor  of  another,  this  is  an  insuffi-   / 
cient  consideration,  for  he  may  immediately  determine/ 
his  will,  ix)     So,  too,  where  a  son  had  given  to  his  father 
r^-jpp-i    a  promissory  note,  *and,  to  an  action  brought 
by  the  father's  executor  against  him  upon  it, 
he  pleaded  that  he  had  just  ground  to  complain  of  the 
distribution  which  the  father  had  in&de  of  his  property, 
as  the  father  had  admitted ;  and  that  it  was  thereupon 
agreed  between  them  that  the  son  should 'cease  forever 
to  make  any  such  complaint ;  and  that  the  father  Avould 
discharge  him  from  liability  on  the  note,  and  the  cause 
of  action  in  respect  thereof;  and  that  such  agreement 
should  be  accepted  in  satisfaction  of  the  note  :  the  Court 
of  Exchequer  clearly  held,  that  there  was  no  consider- 

(m)  Hitchcock  v.  Coker,  6  A.  &  E.  (33  E.  C.  L.  R.)  438  ;  confirmed  b^- 
Proctor  V.  Sargent,  2M.  &  Gr.  (40  E.  C.  L.  R.)  20 ;  and  Green  v.  Price, 
13  M.  &  W.  695  ;  16  M.  &  W.  346,  s.  c,  in  error  ;  Archer  v.  Marsh,  6 
A.  &  E.  (33  E.  C.  L.  R.)  959;  and  Leighton  v.  Wales,  3  M.  &  W.  545. 

(x)  1  Roll.  Abr.  23,  pi.  29. 


CONSIDERATION   OF    PROMISES.  166 

ation  for  the  agreement  of  the  father.  The  son  had  no 
right  to  complain,  for  the  father  might  make  what  dis- 
tribution of  his  property  he  liked  ;  and  the  son's  abstain- 
ing from  doing  what  he  had  no  right  to  do  could  be  no 
consideration,  (y) 

I  think  that  I  have  now  sufficiently  explained  what 
it  is  that  the  law  recognizes  as  a  consideration  sufficient 
to  support  a  promise  without  deed.  I  must  not,  how- 
ever, conclude  without  noticing  one  class  of  cases  which 
form  a  species  of  exception  to  the  rule  that  a  simple 
contract  requires  a  consideration  to  support  it.  I  allude 
to  the  case  of  a  negotiable  security,  as  a  bill  of  exchange, 
or  promissory  note.  These,  not  being  under  seal,  are 
simple  contracts ;  but  there  is  this  marked  distinction 
between  the  situation  in  which  they  stand  and  p^j.^^-,-, 
that  *in  which  any  other  simple  contract  stands,  ^  J 
namely,  that  they  are  always  presumed  to  have  been 
given  for  a  good  and  sufficient  consideration,  until  the 
contrary  is  shown.  And  even  if  the  contrary  he  shown, 
still,  if  the  holder  for  the  time  being^  have  given  value 
for  the  instrument,  his  right  to  sue  on  it  cannot  be  taken 
away  by  showing  that  the  person  to  whom  it  was  origi- 
nally given  could  not  have  sued,  unless,  indeed,  it  be 
further  shown  that  he  [the  holder]  had  notice  of  the 
circumstances,  or  that  he  took  the  security  when  over- 
due, which  is  a  sort  of  constructive  notice,  and  places 
him  in  the  same  situation  as  the  party  from  whom  he 
took  it.  But  so  long  as  nothing  of  that  sort  appears, 
every  note  and  acceptance  is  prima  facie  taken  to  have 
been  given  for  good  consideration,  and  every  indorse- 
ment to  have  been  made  on  good  consideration.  See 
the  cases  collected,  Byles  on  Bills,  last.ed. ;'  Bayley  on 
Bills,  by  Dowdeswell;  and  Smith's  Mercantile  Law, 
last  ed.,  by  Dowdeswell. 

[y]  White  v.  Bluett,  23  L.  J.  (Ex.)  3G. 


168  smith's  law  of  contracts. 


[n68]  *LECTUIIE  V. 

CONSIDERATION  OF  SIMPLE  CONTRACTS. EXECUTED  CONSIDERA- 
TIONS.  WHERE   EXPRESS    REQUESTS   AND   PROMISES    ARE 

OF      AVAIL. MORAL      CONSIDERATIONS. ILLEGAL     CON- 
TRACTS.  RESTRAINTS   OF    TRADE. 

I  ENDEAVORED  to  explain  in  the  last  lecture  what  it  is 
that  the  law  of  England  recognizes  as  a  consideration 
sufficient  to  support  a  promise  without  deed.  I  stated 
that  any  benefit  to  the  person  who  makes  the  promise, 
or  any  loss,  trouble,  or  disadvantage  undergone  by  or 
charge  imposed  upon  the  person  to  whom  it  is  made, 
will  satisfy  the  rule  of  law  in  this  respect.  In  order  to 
render  this  as  clear  as  possible,  I  am  about,  before  pro- 
ceeding to  the  next  branch  of  the  subject,  to  illustrate 
it  by  mentioning  a  few  decided  cases,  in  which  certain 
considerations  have  been  held  sufficient  to  support  the 
promises  founded  on  them. 

It  has  been  frequently  decided,  that,  if  one  man  have 
a  legal  or  equitable  right  of  suit  against  another,  his 
forbearance  to  enforce  that  legal  or  equitable  right  of 
suit  is  a  sufficient  consideration  for  a  promise  either  by 
r*irQ1  the  person  liable  to.  him  or  *by*  any  third  per- 
son, either  to  satisfy  the  claim  on  which  that 
right  of  suit  is  founded,  or  to  do  some  other  and  collat- 
eral act.  Thus,  w"here(«)  the  plaintiff  in  an  action  of 
assumpsit  stated  in  his  declaration  that  he  was  the 
assignee  of  a  bond  for  <£728  2s.  Qd.,  in  which  the  de- 
fendant was  the.  obligor,  and  that,  in  consideration  that 
the  plaintiff  would  receive  payment  on  certain  specified 

{a)  Morton  v.  Burn,  7  A.  &  E.  (34  E,  C.,L.  R.)  19. 


CONSIDERATION   OF   PROMISES.  169 

days,  and  forbear  proceeding  in  the  meanwhile,  the  de- 
fendant had  promised  to  pay  on  those  days ;  after  a  ver- 
dict for  the  plaintiff,  it  was  objected,  in  arrest  of  judg- 
ment, that  there  was  no  consideration  for  the  promise ; 
for  that,  if  an  action  had  been  brought  in  the  name  of 
the  obligee  of  the  bond,  the  agreement  of  the  assignee  to 
forbear  would  have  been  no  defence,  upon  a  ground 
which  I  have  already  sufficiently  explained,  namely, 
that  an  obligation  by  deed  cannot  be  discharged  by  an 
agreement  without  deed.  The  Court,  however,  decided 
that  the  consideration  was  sufficient ;  "  for,"  said  the 
Lord  Chief  Justice,  "  although  "the  agreement  to  forbear 
would  not  be  pleadable  to  an  action  in  the  name  of  the 
obligee,  yet,  unless  the  plaintiff"  did  forbear  according  to 
his  agreement,  he  would  not  be  able  to  sue  on  the  de- 
fendant's promise."  Thus,  again,  where  (^)  the  plaintiff", 
who  had  been  appointed  by  the  Court  of  Chancery  a  re- 
ceiver of  the  debts  and  ^moneys  of  a  firm,  agreed  p^,  rjry, 
to  give  time  of  payment  to  a  person  who  owed 
money  to  the  firm,  in  consideration  of  which  a  third 
person  promised  to  guarantee  the  debt ;  in  an  action 
against  the  third  person,  it  was  objected  that  there  was 
no  sufficient  consideration  for  his  promise ;  the  Court  of 
Common  Pleas,  however,  decided  that  there  was.  In 
another  case  the  plaintiff  had  obtained  judgment  against 
Elizabeth  Mackenzie  for  £57  debt,  and  65^.  costs ;  and, 
in  consideration  that  the  plaintiff'  would  forbear  to  exe- 
cute di.  fieri  facias  on  her  goods,  the  defendant  undertook 
to  pay  him  £107  in  three  days.  It  was  objected,  that 
there  was  no  consideration,  or,  at  least,  no  sufficient  con- 
sideration :  but  Lord  Tenterden  said,  "  It  is  true  the  plain- 

(6)  Willatts  V.  Kennedy,  8  Bing.  (21  E.  C.  L.  R.)  5  ;  Parker  v.  Leigh, 
•1  Stark.  (3  E.  C.  L.  R.)  229;  Atkinson  v.  Bayntun,  1  Bing.  N.  C.  (.27 
E.  C.  L.  R.)  444. 


170  smith's  law  of  contracts. 

tiff  might  not  perhaps  have  been  entitled  to  recover  to  the 
full  extent  of  o£107,  though,  it  is  to  be  observed,  he  might 
have  levied  the  costs  of  the  execution  in  addition  to  the 
sum  given  by  the  verdict.  But  he  had  a  right  at  least  to 
levy  £60 ;  and  if,  in  consideration  of  his  forbearing  that, 
the  defendant  promised  to  pay  him  the  larger  sum ; — if 
the  inconvenience  of  an  execution  against  these  goods  at 
the  time  in  question  was  so  great,  that  the  defendant 
thought  proper  to  buy  it  off  at  such  an  expense,  I  do  not 
see  that  the  consideration  is  insufficient  for  the  pro- 
mise." (c)^ 

(c)  Smith  V.  Algar,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  603. 

'  Forbearance  to  sue  or  proceed,  has  always  been  held  a  sufficient  con- 
sideration :  Hamaker  v.  Eberley,  2  Binn.  506  ;  Johns  v.  Potter,  5  S.  & 
R.  519;  Lonsdale  v.  Brown,  4  Wash.  C.  C.  Rep.  148  ;  Clark  v.  Russell, 
3  Watts  213  ;  Downing  v.  Funk,  5  Rawle  69 ;  Silvis  v.  Ely,  3  W.  &  S. 
420;  Kean  v.  M'Kinsey,  2  Penn.  St.  30;  Dundas  v.  Sterling,  4  Ibid.  73. 
But  if  the  creditor  has  not  the  legal  right  to  sue,  at  any  time  during 
which  he  promises  to  forbear  suit,  the  promise  to  pay  in  consideration 
of  such  forbearance  is  Avithout  consideration,  and  consequently  void  : 
Martin  v.  Black,  20  Ala.  309.  In  Caldwell  v.  Heitsher,  9  W.  &  S.  51, 
the  term  "further  forbearance,"  as  the  consideration  expressed  in  a 
written  guarantee,  was  construed  to  mean  forbearance,  for  a  convenient 
or  reasonable  time,  taking  into  view  in  its  computation  as  an  element 
the  period  which  had  heretofore  been  permitted  to  elapse,  without  en- 
forcing payment ;  and  what  is  a  reasonable  or  convenient  time,  the 
Court  must  determine.  Forbearance  to  sue  a  debt  due  and  payable, 
upon  receiving  a  personal  promise  of  payment  from  the  assignee  in 
pais  of  the  debtor,  is  evidence  from  which  a  jury  may  infer  an  agree- 
ment to  forbear  which  is  a  good  consideration  for  the  [)romise  :  Boyd  v. 
Frieze,  5  Gray  553.  In  order  to  constitute  a  valid  contract  of  forbear- 
ance of  suit,  it  is  necessary  that  it  should  be  definite  and  certain  as  to 
the  terms  of  forbearance  and  the  period  of  it :  Garnett  v.  Kirkman,  33 
Miss.  389.  The  promise  of  A.  to  pay  the  debt  of  B.  in  consideration  of 
forbearance  is  not  binding,  unless  accepted  by  the  promisee.  To  make 
it  binding  both  must  be  bound  :  Shape  v.  Galbraith,  32  Penn.  St.  10.  A 
promise  in  consideration  of  forbearance  to  pay  the  debt  of  an  infant, 
who  ratifies  the  contract  after  arriving  at  full  age  is  valid  and  binding 
on  the  promisor  :  Kuns  v.  Young,  34  Ibid.  60.  If  the  promisee  perform 
the  thing  required,  though  not  bound  by  the  agreement  to  do  it,  the 
performance  is  a  consideration  and  the  promisor  is  bound :  Crawford  v. 


CONSIDERATION    OF    PROMISES.  170 

And  where  a  man  who  has  a  judgment  debt  thji  71-1 
*takes  from  his  debtor  a  promissory  note  for 
the  amount,  payable  at  a  certain  future  time,  it  must  be 
inferred  that  he  thereby  enters  into  an  agreement  to 
suspend  his  remedy  for  that  time,  and  if  so,  that  is  a 
good  consideration  for  the  giving  of  the  note.  (J) 

Although  a  man  has  not  a  clear  legal  or  equitable 
right,  yet  if  his  right  or  claim  is  doubtful,  and  not 
clearly  nugatory  or  illegal,  the  abandonment,  or,  for  the 
same  reason,  the  forbearance  of  an  action  brought  to 
enforce  it,  is  a  sufficient  consideration  for  a  promise,  [e) 
Where  the  plaintiff's  goods  had  been  seized  by  the 
Excise,  and  he  had  afterwards  entered  into  an  agree- 
ment with  the  Commissioners  of  Excise,  that  all  j»ro- 
ceedings  should  be  terminated,  the  goods  delivered  up 
to  him,  and  a  sum  of  money  paid  by  him  to  the  Com- 
missioners, Parke,  B.,  rests  his  judgment  on  the  ground 
that  this  agreement  of  compromise,  honestly  made,  was 
for  a  consideration,  and  binding.  (/)  Indeed  the  dis- 
puted claim  may  be  wholly  unfounded,  and  yet  the  com- 
promise of,  or  forbearance  to  enforce  the  claim,  ma}^  be 
a  good  consideration,  if  the  claim  be  made  bo?id  fide  at 
the  time  of  the  agreement  to  compromise  or  forbear.  (_^) 

{(1)  Belshaw  v.  Bush,  29  L.  J.  (C.  P.)  24;  Baker  v.  Walker,  14  M.  k 
W.  465.  See  Tempson  v.  Knowles,  7  C.  B.  (62  E.  C.  L.  R.)  651  ;  Wil- 
son V.  Bevan,  7  C.  B.  (62  E.  C.  L.  R.)  673. 

(e)  Longridge  v.  Dorville,  5  B.  &  Ad.  (7  E.  C.  L.  R.)  117  :  Stracy  f. 
Bank  of  England,  6  Bing.  (19  E.  C.  L.  R.)  754. 

(/)  Atlee  V.  Backhouse,  3  M.  &  W.  633. 

((/)  Callisher  v.  Bichoffsheim,  L.R.,  5  Q.  B.  449  :  39  L.  J.  (Q.  B.)  ISI. 

Avery,  35  Miss.  205.  A  promise  to  pay  money,  in  consideration  of  for- 
bearance to  sue  when  there  is  no  legal  cause  of  action  i's  void  :  Palfrey 
V.  Portland  R.  R.  Co.,  4  Allen  55.  See  also  Steadman  v.  Guthrie,  4  Met. 
(Ky.)  147;  M'Celvy  ?;.  Noble,  13  Rich.  (Law)  330;  Sharpe  «?.  Rogers 
12  Minn.  174  ;  Mechanics'  Bank  v.  Wexson,  42  N.  Y.  438. 


172  smith's  law  of  contracts. 

r*l  72T  *Tlms,  in  Cook  v.  Wright,  (7^)  the  trustees  under 
a  local  Act  called  on  the  client  of  the  owner  of 
certain  houses  to  pay  certain  expenses  chargeable  under 
the  Act  on  the  owner.  The  agent  told  the  trustees 
that  he  was  not  the  owner  but  that  B.  was,  and  that 
such  owner  and  not  he  was  liable ;  but  the  trustees  not- 
withstanding, really  believing  that  he  was  liable,  threat- 
ened to  take  proceedings  against  him.  Thereupon  the 
agent,  although  he  knew  he  was  not  liable,  gave  his 
own  promissory  notes  to  the  trustees,  on  their  agreeing 
to  take  less  than  the  amount  demanded,  and  allowing  it 
to  be  paid  by  instalments,  and  this  was  decided  to  be  a 
good  consideration.  A  fortiori,  where  the  right  is  not 
doubtful,  but  the  amount  of  the  claim  only  is  disputed, 
an  agreement  for  the  settlement  of  all  disputes  upon 
the  payment  of  a  definite  but  smaller  sum  than  that 
claimed,  is  held  to  be  founded  upon  sufficient  considera- 
tion, (zy     But  it  would  be  another  matter  if  a  person 

{h)  Cook  V.  Wright,  1  B.  &  S.  (101  E.  C.  L.  R.)  559 ;  30  L.  J.  (Q.  B.) 
;:!21. 

(/)  Edwards  v.  Baugh,  11  M.  &  W.  641  ;  Wilkinson  v.  Byers,  1  A.  & 
E.  (28  E.  C.  L.  E.)  106  ;  Llewellyn  v.  Llewellyn,  3  D.  &  L.  318. 

'  "A  compromise  of  a  doubtful  title,  when  procured  without  such  de- 
ceit as  would  vitiate  any  other  contract,  concludes  the  parties,  though 
ignorant  of  the  extent  of  their  rights."  Gibson,  C.  J.,  in  Hoge  v.  Hoge, 
1  Watts  216  ;  Brown  v.  Sloan,  6  Watts  421  ;  Meanor  v.  M'Kowan,  4  W. 
&  S.  304 ;  Rinehart  v.  Olwine,  5  Ibid.  163  ;  M'Culloch  v.  Cowper,  Ibid. 
417  ;  Chamberlain  v.  M'Clurg,  8  Ibid;  37  ;  Logan  v.  Matthews,  6  Penn. 
St.  417.  Even  when  there  was  a  mutual  mistake  of  the  law,  the  parties 
having  acted  in  good  faith,  a  compromise  has  been  supported  :  M'Coy 
r.  Hutchinson,  8  W.  &  S.  66.  The  compromise  of  an  action  of  slander, 
in  which  the  words  laid  in  the  declaration  were  not  actionable,  was  held 
a  good  consideration  :  O'Keson  v.  Barclay,  2  P.  R.  531.  That  the  claim 
was  evidently  without  color  would  be  a  circumstance  to  show  fraud  or 
imposition  upon  a  weak  understanding,  but  if  a  man  with  his  faculties 
about  him,  makes  a  promise  to  get  rid  of  an  annoying  claim,  which, 
though  worthless,  it  will  cost  him  time,  trouble  and  money  to  contest, 
it  would  be  drawing  the  Court  into  too  nice  a  discussion  to  determine 


CONSIDERATION    OF    PROMISES.  172 

made  a  claim  which  he  knew  to  be  unfounded.    Thus,(^) 
where  issue  had  been  joined  in  a  previous  action  for  the 
recovery  of  a  sum  of  money  from  the  defendant,  who 
had  thereupon  promised  to  pay  the  money  and  costs,  in 
consideration  that  the  plaintiff  would  forbear  further 
*proceedings ;  an  action  having  been  brought    r-y.-i^jo-i 
upon  this  promise,  the  defendant  pleaded  that 
the  plaintiff  never  had  any  cause  of  action  against  the 
"defendant  in  respect  of  the  subject-matter  of  the  said 
action.     "To  that,"  said  Tindal,  C.  J.,  in  giving  judg- 
ment, "the  plaintiff  has  demurred,  and,  doing  so,  admits 
the  statement  contained  in  it,  that  he  had  no  cause  of 
action  in  the  original  suit,  to  be  true.     Having  made 
that  admission,  it  appears  to  me  that  he  is  estopped 
from  saying  that  there  was  any  valid  consideration  for 
the  defendant's  promise.     It  is  almost  contra  honos  mores, 
and  certainly  against  all  legal  principle,  that,  when  a 
man  knows  that  he  has  no  cause  for  it,  he  should  still 
persist  in   prosecuting   an  action.      Then,  in  order  to 
establish  a  binding  promise,  the  plaintiff  must  show  a 
consideration  for  it,  consisting  of  something  which  is 

(A-)  Wade  v.  Simeon,  2  C.  B,  (52  E.  C.  L.  R.)  548  ;  and  see  Callisher 
V.  Bischoffsheim,  stqjra. 

what  degree  of  doubt  there  must  be  about  it  to  give  validity  to  the  com- 
promise. A  compromise  of  conflicting  and  doubtful  claims  or  the  giving 
up  a  suit  instituted  to  try  a  question  respecting  which  the  law  is  doubt- 
ful, is  a  suflBcient  consideration  to  support  an  agreement  to  pay  a  stipu- 
lated sum  :  Field  v.  Weir,  28  Miss.  56 ;  Burnham  v.  Dunn,  35  N.  H. 
556  ;  Mayo  v.  Gardner,  4  -Jones  (Law)  359 ;  Jarvis  v.  Sutton,  3  Ind.  289 ; 
Kerr  v.  Lucas,  1  Allen  279 ;  Allen  v.  Prater,  35  Ala.  169 ;  Crans  v.  Hun- 
ter, 28  N.  Y.  389.  An  agreement  to  settle  a  family  controversy  cannot 
be  considered  a  nude  pact:  Watkins  v.  Watkins,  24  Ga.  402.  Where  a 
claim  is  legally  groundless  a  promise  upon  a  compromise  of  it  or  of  a 
suit  upon  it,  is  not  binding:  Schnell  v.  Nell,  17  Ind.  29. "  See  also  Crans 
0.  Hunter,  28  N.  Y.  389 ;  Fleming  v.  Ramsey,  46  Penn.  St.  252 ;  Far- 
mers' Bank  v.  Blair,  44  Barb.  641 ;  Scott  v.  Warner,  2  Lans.  49  ;  Snow 
V.  Grace,  29  Ark.  131. 
13 


173  smith's  law  of  contracts. 

either  beneficial  to  the  defendant,  or  detrimental  to  the 
plaintiff.  It  cannot,  however,  be  said  that  the  foregoing 
of  such  an  action  can  be  regarded  by  a  Court  as  bene- 
ficial to  the  defendant,  because  he  thereby  saves  the  risk  ■ 
of  defeat,  and  the  extra  costs  which  he  would  neces- 
sarily incur  in  his  defence ;  for  we  must  assume  that 
the  result  of  the  action  would  have  been  in  his  faA^or, 
and  the  law  would  enable  him  to  recover  costs,  which 
it  regards  as  a  compensation  for  all  the  costs  the  defendant 
sustains.  Neither  can  the  foregoing  of  the  action  be 
regarded  as  detrimental  to  the  plaintiff,  for  we  can  only 
r*l  741  ^^^^^  ^^  ^^  saving  him  from  the  '^'payment  of 
those  costs.  The  consideration,  therefore,  fails 
upon  both  grounds." 

Again  it  has  been  decided,  that,  if  I  entrust  a  man  to 
do  some  act  for  me,  although  I  am  to  pay  him  nothing 
for  performing  it,  still  the  mere  trust  which  I  repose  in 
him  is  a  consideration  for  a  promise  on  his  part  to  con- 
duct himself  faithfully  in  the  performance  of  it.(/) 
Nay,  so  far  do  the  cases  on  this  subject  go,  that  it  is 
settled  that  not  only  is  the  reposal  of  such  trust  a  suf- 
ficient consideration  for  an  express  promise  on  the  part 
of  the  person  in  whom  it  is  reposed  to  conduct  himself 
faithfully  in  the  performance  of  it ;  but  the  law,  even  in 
the  absence  of  an  express  promise,  implies  one  that  he 
will  not  be  guilty  of  gross  negligence.  This  was  the 
point  decided  in  the  famous  case  of  Coggs  v.  Ber- 
nard, [m) 

In  this  case  Bernard  had'  undertaken  safely  and 
securely  to  take  up  several  hogsheads  of  brandy  from 

{I)  See  Whitehead  v.  Greethara,  2  Bing.  (9  E.  C.  L.  K.)  464  ;  Shili- 
beer  v.  Glynn,  2  M.  &  W.  143  ;  Bainbridge  v.  Firmstone,  ante,  p.  163. 

(m)  2  Ld.  Raym.  909  ;  1  Smith,  L.  C.  177,  (6th  ed.)  See  Gladwell  v. 
Steggall,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  733  ;  Blackmore  v.  Bristol  and 
Exeter  Railway,  27  L.  J.  (Q.  B.)  167;  8  E.  &  B.  (92  E.  C.  L.  R.)  1035. 


CONSIDERATION    OF    PROMISES.  174 

one  cellar,  and  safely  and  securely  to  lay  them  down 
again  in  another;  and  he  was  held  bound  by  that  under- 
taking, and  responsible  for  damage  sustained  by  them 
in  the  remoA^al.  The  reason  is,  said  Mr.  Justice  Gould, 
the  particular  trust  reposed  in  '-'the  defendant,  pj.-.  r-r--, 
to  which  he  has  concurred  by  his  assumption, 
and  in  executing  which  he  has  miscarried  by  his  neglect. 
If  goods  are  deposited  with  a  friend,  and  are  stolen  from 
him  no  action  will  lie.  But  there  will  be  a  difference 
in  that  case  upon  the  evidence  how  the  matter  appears. 
If  they  are  stolen  by  reason  of  a  gross  neglect  in  the 
bailee,  the  trust  will  not  save  him  from  an  action ;  other- 
wise, if  there  be  no  gross  neglect.  But,  if  a  man  takes 
upon  him  expressly  to  do  such  an  act  safely  and  securely, 
if  the  thing  comes  to  any  damage  by  his  miscarriage, 
an  action  will  lie  against  him. 

And  on  this  point  of  the  law  it  is  that  the  celebrated 
distinction  occurs  between  remunerated  and  unremuner- 
ated  agents ;  from  the  former  of  whom  the  law  implies 
a  promise,  that  they  will  act  with  reasonable  diligence ; 
from  the  latter,  only  that  they  will  not  be  guilty  of 
gross  negligence.  Thus,  where  a  stage-coachman  re- 
ceived a  parcel  to  carry  gratis,  and  it  was  lost  upon  the 
road.  Lord  Tenterden  directed  the  jury  to  consider 
whether  there  was  great  negligence  on  the  coachman's 
part.(?2)  And  where  the  declaration  stated  that,  in 
consideration  that  the  plaintiff,  at  the  defendant's  re- 
quest, w^ould  employ  him  to  lay  out  £1400  on  the  pur- 
chase of  an  annuity,  the  defendant  promised  to  perform 
his  duty  in  the  premises,  yet  did  not  do  so,  but  laid  it 
*out  in  the  purchase  of  an  annuity  on  the  per-  ^ 

sonal  security  of  insolvent  persons,  the  Court    ^         -^ 

(n)  Beauchamp  v.  Powley,  1  M.  &  Rob.  38.     See,  as  to  the  meaninor 
of  gross  negligence,  Beal  v.  S.  Devon  Rail.  Co.,  3  H.  &  C.  336. 


176  smith's  law  of  contracts. 

arrested  the  judgment,  on  the  ground  that  the  defendant 
was  an  unremunerated  agent,  and  was  not  charged  with 
havmg  acted  negligently  or  dishonestly,  (o)  There  is 
another  equally  remarkable  distinction,  namely,  that  a 
remunerated  agent  may  be  compelled  to  enter  upon  the 
performance  of  his  trust,  or  at  least  made  liable  in  dam- 
ages if  he  neglect  to  do  so ;  whereas  an  unremunerated 
agent  cannot,  although,  as  we  have  seen,  he  may  be 
liable  for  misconduct  in  the  performance  of  it.  This 
•  proposition  is  well  illustrated  in  the  case  of  Elsee  v. 
Gatward,  {p)  where  one  count  of  the  declaration,  stating 
that  the  plaintiff  retained  the  defendant,  a  carpenter,  to 
repair  a  house  before  a  given  day,  that  the  defendant 
accepted  the  retainer,  but  did  not  perform  the  work 
within  the  time,  whereby  the  walls  of  the  plaintiff's 
house  were  damaged,  w^as  held  to  be  insufficient  as  not 
showing  any  consideration;  but  another  count,  stating 
that  the  plaintiff,  being  possessed  of  some  old  materials, 
retained  the  defendant  to  perform  the  carpenter's  work 
on  certain  buildings  of  the  plaintiff,  and  to  use  those 
old  materials,  but  that  the  defendant,  instead  of  using 
them,  made  use  of  new  ones,  thereby  increasing  the 
expense,  was  held  good,  as  it  appeared  that  the  defend- 
ant had  entered  on  the  performance  of  the  work. 
P^^  __-,  *Again,  if  one  man  is  compelled  to  do  that 
which  another  man  ought  to  have  done  and  was 
f  ^compelled  to  do,  that  is  a  sufficient  consideration  to  sup- 
'illiUu  port  a  promise  by  the  former  to  indemnify  him.  Such 
-_,_—  is  the  common  case  of  a  surety  who  has  been  compelled 
to  pay  a  demand  made  against  the  principal,  and  who, 
as  we  know,  is  entitled  to  bring  an  action  of  assumpsit 

(o)  Dartnall  v.  Howard,  4  B.  &  C.  (10  E.  C.  L.  R.)  345  ;  Doorman  v. 
Jenkins,  2  A.  &  E.  (29  E.  C.  L.  R.)  256. 
(p)  5  T.  R.  143. 


CONSIDERATION   OF    PROMISES.  177 

to  recover  an  indemnity.  And  such  is  also  the  case  of 
an  indorser  of  a  bill,  who,  on  account  of  the  acceptor's 
default  in  not  paying  the  bill  when  due,  is  compelled  by 
the  holder  to  pay  him  the  amount ;  the  indorser  may 
sue  the  acceptor  to  recover  an  indemnity .  (§')  In  like 
manner,  if  one  of  several  joint  contractors,  not  being 
partners  (whose  rights  inter  se  are  not  at  common  law 
ever  decided),  has  been  compelled  to  pay,  or  in  pursu- 
ance of  his  legal  obligation  has  paid,  the  whole  of  their 
common  liability,  he  is  entitled  to  recover  from  such  of 
them  his  proportional  share,  (r)  An  instructive  example 
of  the  same  rule  is  afforded- by  the  case  of  Sutton  v. 
Tatham.(-s)  There,  the  broker  for  a  seller  having 
entered  into  a  contract  for  the  sale  of  stock, 
'='which  was  not  fulfilled  by  his  principal,  and  ■-  ^ 
similar  stock  having  been  thereupon  purchased  at  a 
higher  price  by  the  broker  of  the  purchaser,  the  seller's 
broker,  in  obedience  to  a  rule  of  the  Stock  Exchange, 
paid  the  difference,  and  also  the  commission  of  the  pur- 
chaser's broker ;  and  it  was  held  that  the  seller's  broker 
might  recover  from  his  principal  the  amount  of  such 
payments,  by  showing  that  it  was  compulsory  upon  him 
to  make  them.  These  examples  seem  sufficient  to  ex- 
plain the  nature  of  the  species  of  consideration  now 
before  us.(^) 

[q]  Pownall  v.  Ferrand,  6  B.  &  C.  (13  E.  C.  L.  R.)  439. 

{}•)  Holmes  V.  Williamson,  6  M.  &  S.  158  ;  Prior  w.  Hembrow,  8  M.  & 
W.  873 ;  Pitt  V.  Purssord,  8  M.  &  W.  538  ;  Batard  v.  Hawes,  22  L.  J. 
(Q.  B.)  443  ;  2  E.  &  B.  (75  i:.  C.  L.  R.)  287. 

(s)  10  A.  &  E  (37  E.  C.  L.  R.)  27  ;  Pawle  y .  Gunn,  4  Binjr.  N.  C. 
(33  E.  C.  L.  R.)  445  ;  Bayliffe  v.  Butterworth,  1  Ex.  425  ;  Bayley  v. 
Wilkins,  7  C.  B.  (62  E.  C.  L.  R.)  886  ;.  Westrop  v.  Solomon,  8  C.  B. 
(65  E.  C.  L.  R.)  345  ;  Taylor  v.  Stray,  26  L.  J.  (C.  P.)  185  ;  2  C.  B. 
(N.  S.)  (89  E.  C.  L.  R.)  175  ;  26  L.  J.  (C.  P.)  287.  s.  c.  in  Ex.  Ch. 

[t)  Tonssaint  v.  Martinnant,  2  T.  R.  100  ;  Fisher  v.  Fallowes,  5  Esp. 
171  ;  Jeffreys  v.  Gurr,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  833. 


178  smith's  law  of  contracts. 

I  might  cite  a  multitude  of  other  cases  in  which  ques- 
tions -have  arisen  as  to  the  sufficiency  of  the  consider- 
ation ;  but  I  think  that  the  instances  I  have  already 
xiven  are  sufficient  for  the  purpose  I  had  in  view,  which 
vvas,  to  illustrate  the  general  nature  of  the  questions 
which  arise  on  the  sufficiency  of  a  consideratmi  to  sup- 
port a  promise. 

There  is,  however,  one  thing  more  to  be  observed, 
and  that  is,  the  distinction  between  executed  and  execu- 
tory considerations.  Now,  with  regard  to  the  meaning 
of  these  words,  which  you  will  continually  hear  used  in 
legal  arguments,  it  is  this  : — ^an  executed  consideration  is 
one  which  has  already  taken  i^lace,  an  executory  consider- 
ation one  which  is  to  take  'place, — one  is  past,  the  other\ 
future.  Thus,  if  A.  delivered  goods  to  B.  yesterday, 
r*1  7Q1  ^^^  ^'  *'^^k6s  ^  promise  to-day  in  considera- 
tion of  that  delivery,  this  promise  is  said  to  be 
founded  upon  an  executed  consideration,  because  the  de- 
livery of  the  goods  is  past  and  over.  But,  if  it  be 
agreed  that  A.  shall  deliver  goods  to  B.  to-morrow,  and 
that  B.  shall,  in  consideration,  do  something  for  A., 
here  is  an  executory  consideration,  because  the  delivery 
of  the  goods  has  not  yet  taken  place.  And  so,  when- 
ever, at  the  time  of  making  a  promise,  the  consideration 
on  which  it  is  founded  is  fast,  the  consideration  is  said 
to  be  executed ;  whenever  the  consideration  is  future,  it 
is  said  to  be  executory} 


^  There  are  also  said  to  be  two  other  kinds  of  considei-ation,  viz.,  con- 
curring and  continuing.  The  former  arises  in  the  case  of  mutual  pro- 
mises, as  where  A.  and  B.  being  competitors  for  the  bounty  for  the  best 
manufactured  cloth,  agreed  that  the  successful  competitor  should  divide 
the  bounty  with  the  other,  the  promises  were  mutual,  and  in  considera- 
tion of  each  other  :  Briggs  v.  Tilloton,  8  Johns.  306.  So  when  several 
promise  to  contribute  to  a  common  object :  Stewart  v.  Trustees  of  Ham- 


EXECUTED    CONSIDERATIONS.  179 

Now,  between  executed  and  execidory.  or,  in  other 
words,  between  'past  and  future  considerations,  the  law 
makes  this  distinction,  namely,  that  an  executed  consider- 
ation must  be  founded  on  a  previous  reg[uest :  an  e;2;e(?M- 
^'ory  ojig^oged  not,  or,  to  speak  more  correctly,  its  very 
terms  imply  a  request."  For,  if  A.  promise  to  remu- 
nerate B.,  in  consideration  that  B.  will  perform  some- 
thing  specified,   that  amounts   to   a  request  to   B.   to 


ilton  College,  2  Denio  403  ;  Society  of  Troy  v.  Perry,  6  N.  H.  164  ; 
where  one  promises  to  become  a  partner,  and  the  other  premises  to  re- 
ceive him  as  such :  M'Neil  v.  Reid,  9  Bing.  (23  Ei  C.  L.  R.)  68,  and  the 
like  ;  AYood  v.  Rice,  481  ;  Wightman  v.  Coates,  15  Mass.  1  ;  Willard  v. 
Stone,  7  Cow.  22.  In  cases  of  concurrent  considerations,  if  the  pro- 
mise of  either  party  should  fail  to  bind  him  (as  from  illegality  of  sub- 
ject-matter, or  any  such  cause),  the  other  promise  would  be  deprived  of 
its  support,  and  the  contract  could  not  be  enforced.  It  is  also  necessary 
that  the  promises  should  be  mutual  and  simultaneous  :  Thornton  v. 
Jenyns,  1  Scott  74  ;  and  an  averment  that,  in  consideration  of  the  plain- 
tift''s  promise,  the  defendant  "  aftericards,  to  wit,  on  the  same  day,  pro- 
mised," has  been  held  bad,  the  proouise  having  no  consideration  ;  that 
is,  no  consideration  but  another  promise,  and  that  promise  was  not  a 
mutual  and  simultaneous  one  :  Livingston  v:  Rogers,  1  Caines  583  ; 
Fricke  v.  "Wood,  12  Johns.  190  ;  Keep  v.  Goodrich,  Ibid.  397. 

It  has  been  sometimes  said  that  a  coatinuing  consideration  is  suffi- 
cient to  support  a  promise,  as  where  one  should  promise  in  considera- 
tion of  what  the  other  party  had  done  and  might  thereafter  do.  But,  in 
reality,  it  is  the  executory  part  of  the  consideration  which  is  alone  valu- 
able, and  is  sufficient  to  support  the  whole  promise  ;  and  such,  upon 
examination,  will,  it  is  believed,  be  found  to  be  the  true  ground  of  de- 
cision of.  the  cases  :  Pearl  v.  Unge,  Cro.  Eliz.  94  ;  Brett  w.  J.  S.,  Cro. 
Eliz.  735  ;  Colton  v.  Westcott,  1  Rolle  381  ;  Loomis  v.  Newhall,  15 
Pick.  159  ;  Andrews  v.  Ives,  3  Conn.  368. — r. 

Mutual  promises  constitute  a  sufficient  consideration  for  the  support 
of  a  contract:  Forney  v.  Shipp,  4  Jones  (Law)  527  ;  Nott  v.  Johnson, 
7  Ohio  (N.  S)  270  ;  Leach  v.  Keach,  7  Clarke  232  ;  Aldrich  v.  Lyman, 
6  R.  I.  98  ;  Funk  v.  Hough,  29  111.  145  ;  Briggs  v.  Sizer,  30  N.  Y.  647  ; 
Downey  v.  Ilinchman,  25  Ind.  453  ;  Boies  v.  Vincent,  24  Iowa  387  ; 
Missesquor  v.  Sabin,  48  Verm.  239.  And  see  as  to  sul)scriptions : 
Underwood  v.  Waldson,  12  Mich.  73  ;  Van  Renssclcar  v.  Aiken,  44 
Barb.  547  ;  Pitt  v.  Gentle,  49  Mo.  74  ;  Cooper  r.  M'Crimmin,  33  Tex. 
383  ;  Lathrop  v.  Knapp,  27  Wis.  214. 


179 


SMITH  S    LAW   OF    CONTRACTS. 


perform  the  act  for  which  he  is  to  be  remunerated,  (m) 
For  instance,  in  the  case  of  Hunt  v.  Bate,(r?;)  Bate's 
servant  was  arrested  and  sent  to  prison,  and  Hunt  be- 
came bail  for  him,  and  procured  his  liberation,  after 
wdiich  the  master  promised  Hunt  to  save  him  harmless. 
Hunt  was  obliged  to  pay  the  servant's  debt,  and  brought 
p...-,  o  A-1  an  *action  against  Bate  upon  his  promise  to  in- 
demnify him ;  but  the  Court  held  that  it  would 
not  lie.  "For,"  said  the  Judges,  "the  master  did  never 
make  request  to  the  plaintiff  to  do  so  much,  but  he  did 
it  of  his  own  head,"  But,  the  report  goes  on  to  say, 
"in  another  action  brought  on  a  promise  of  twenty 
pounds  made  to  the  plaintiff  by  the  defendant,  in  con- 
sideration that  the  plaintiff,"  at  the  special  instance  of  the 
defendant,  had  taken  to  wife  the  cousin  of  the  defendant, 
that  was  a  "  good  cause  of  action,  though  the  marriage 
was  executed  and  past,  before  the  undertaking  and  pro- 
mise, because  the  marriage  ensued  at  the  request  of  the 
defendant."^ 

(tt)  1  Smith  L.  C.  142,  note  6th  ed. 

\x)  Dyer  272  ;  Pourtales  Georgier  v.  Morris,  29  L.  J.  (C.  P.)  208. 

^  A  very  good  illustration  of  this  principle  may  be  found  in  the  recent 
case  of  Dearborn  v.  Bowman,  3  Mete.  155,  whei-e  the  plaintiff  had  in  a 
political  campaign  rendered  services  in  the  circulation  of  pamphlets  to 
aid  the  election  of  the  defendant,  who  had  subsequently  promised  to 
pay  him  therefor,  and  the  Court,  in  holding  the  promise  to  be  destitute 
of  consideration,  said,  "  Such  services  impose  no  obligation,  legal  or 
moral,  on  the  defendant,  and  it  would  be  somewhat  dangerous  to  hold 
that  they  created  any  honorary  obligation  on  him  to  pay  for  them.  Nor 
would  it  be  aided  in  a  legal  view  by  a  previous  custom,  if  proved,  for 
candidates  to  contribute  to  the  payment  of  similar  expenses,  whether 
successful  or  otherwise  in  the  election.  Nor  were  these  services  per- 
formed at  the  request  of  the  defendant.  On  the  contrary,  it  appeared  by 
the  evidence  that  they  were  performed  by  the  chairman  of  the  county 
committee,  who  alone  was  responsible  for  the  payment,  and  between 
whom  and  the  defendant  there  was  no  privity,  nor  even  any  communica- 
tion, until  long  after  the  services  had  been  performed.  The  rule  of  law- 
seems  to  be  now  well  settled,  though  it  may  have  been  formerly  left  in 


EXECUTED    CONSIDERATIONS.  180 

These  two  cases  clearly  illustrate  the  distinction  be- 
tween an  executed  consideration  moved  by  a  previous 
request,  which  will  support  a  promise,  and  an  executed 
consideration  not  moved  by  a  previous  request,  which 
will  not  support  a  promise.  You  will  find  the  same 
distinction  clearly  explained  in  Lampleigh  v.  Brath- 
waite,(^)  where  the  Court  said,  "a  mere  voluntary 
courtesy  will  not  have  a  consideration  to  uphold  an 
assumpsit.  But  if  that  courtesy  were  moved  by  a  suit 
or  request  of  the  party  who  gives  the  assumpsit,  it  will 
bind ;  for  the  promise,  though  it  follows,  yet  it  is  not 
naked,  but  couples  itself  witli  the  suit  before,  and  the 
merits  *of  the  party  procured  by  that  suit,  r...-,Qin 
which  is  the  difference."  In  a  modern  case  ^  ^ 
this  principle  was  applied  where  the  question  was,  as 
to  whether  there  had  been  any  consideration  given  for 
a  Bill  of  Exchange.  A.,  the  plaintiff,  having  performed 
gratuitously  services  for  B.,, received  from  him  a  promis- 
sory note,  with  an  understanding  that  he  should  not 
only  accept  it  as  a  gift  for  what  was  past,  but  that  it 
should  be  a  remuneration  for  future  services  to  be  ren- 
dered as  long  as  B.  should  require  them.     A.  continued 

{y)  Hob.   105,     See  judgment   in  Eastwood  v.  Kenyon,  11  A.  &  E. 
(39  E.  C.  L.  K.)  438. 

doubt,  that  the  past  performance  of  service  constitutes  no  consideration 
even  for  an  express  promise,  unless  they  were  performed  at  the  express 
or  implied  request  of  the  defendant,  or  unless  they  were  done  in  per- 
formance of  some  duty  or  obligation  resting  on  the  defendant :  Mills  u. 
Wyman,  3  Pick.  207;  Loomis  v.  Newhall,  15  Pick.  159;  Dodge  v. 
Adams,  19  Pick.  429.  As  the  services  performed  by  the  plaintiff  were 
not  done  at  the  request  of  the  defendant,  as  they  were  not  done  in  the 
fulfilment  of  any  duty  or  obligation  resting  on  hira,  there  was  no  con- 
sideration to  convert  the  express  promise  of  the  defendant  into  a  legal 
obligation."  To  the  same  point  are  Snevely  v.  Reed,  9  Watts  396  ; 
Geer  w.  Archer,  2  Barb.  420;  Hudson  v.  Overtuff,  1  Scam.  170;  Kin- 
nerly  v.  Martin,  8  Mo.  698  ;  Beaumont  v.  Reeve,  8  Q.  B.  (55  E.  C.  L.'R.) 
483.— R. 


181  smith's  law  of  contracts. 

to  perform  the  services  until  B.'s  death,  when  he  sued 
B.'s  executors  upon  the  note.  It  was  held  that,  in  order 
to  make  the  future  services  a  good  consideration  for 
giving  the  note,  it  was  incumbent  on  the  plaintiff  to 
show  that  there  was  some  contract  binding  him  to  per- 
form future  services  which  might  have  been  enforced 
by  the  giver  of  the  note,  and  that  a  mere  underdanding 
was  not  a  sufficient  consideration,  there  being  nothing 
to  show  that  the  plaintiff  might  not,  the  moment  the 
note  was  given,  have  refused  to  give  his  services.  (0)-^ 

But  here  arises  another  distinction,  and  it  is  the  last 
to  which  1  shall  refer  upon  this  subject ;  but  this  is  a 
distinction  to  which  it  is  absolutely  necessary  to  refer, 
in  order  that  you  may  not  be  misled  by  what  I  have 
already  stated.  There  being  the  rule  I  have  just  stated 
r*l  S91  ^'^o^i'diiig  executed  "^considerations,  namely,  that 
an  executed  consideration  must  have  arisen  from 
a  previous  request  by  the  person  promising,  in  order 
that  it  may  be  sufficient  to  support  the  promise,  there  are 
certain  classes  of  cases  in  which  this  'previous  request  is 
implied,  and  need  not  be  expressly  proved  by  the  person 
to  \Yhom  the  promise  is  given.  Now  the  cases  in  which 
a  previous  request  is  implied  are  as  follows  : 

First,  \h^  case  which  I  have  already  stated,  in  ivliicli 
one  man  is  cotnpeiled  to  do  that  which  another  ought  to  have 
done,  and  was  compellable  to  do.  In  this  case  the  con- 
sideration is  an  executed  one,  for  the  thing  must  have 
been  done  before  any  promise  can  be  made  to  reimburse 

(z)  Hulse  V.  Hulse,  17  C.  B.  (84  E.  C.  L.  R.)  711  ;  25  L.  J.  (C.  P.) 
177. 

^  The  student  who  seeks  for  a  more  extended  analysis  of  this  subject 
than  can  be  afforded  in  these  elementary  lectures,  may  most  profitably 
refer  to  the  note  to  Lampleigh  v.  Brathwaite,  1  Smith's  Lead.  Cas.  195, 
4th  Amer.  Ed.,  and  that  to  Vadakin  v.  Soper,  1  Amer.  Lead.  Cas. 
120.— R. 


EXECUTED   CONSIDERATIONS.  182 

the  person  who  has  done  it ;  but,  though  the  considera- 
tion is  executed  the  Imo  implies  the  request.  And  there- 
fore in  this  case  an  action  may  be  brought  for  indemnity 
without  proving  any  express  request  on  the  part  of  the 
defendant,  (a)  In  addition  to  the  examples  ah'eady 
given,  the  case  of  Exall  v.  Partridge  (J)  is  well  calculated 
to  set  this  matter  in  a  clear  light.  There  the  defendant 
was  tenant  of  certain  premises,  and  under  covenant  to 
pay  rent  to  the  landlord  for  them.  Having  neglected 
to  pay  the  rent,  the  goods  of  a  stranger  to  the  contract 
between  the  landlord  *and  tenant,  which  were  r:!:-|oo-| 
upon  the  premises  of  the  latter,  were  distrained 
by  the  landlord  for  the  rent  in  arrear,  and  it  was  held 
that  he  might  sue  the  tenant  for  the  money  which  he  had 
pafd,  in  order  to  redeem  his  goods ;  although  it  is 
obvious,  from  the  state  of  the  facts,  that  no  request  that 
he  should  do  so  had  in  fact  been  made  by  the  tenant. 
In  Grissell  v.  Robinson,  (c)  the  plaintiffs  had  contracted 
to  grant  the  defendant  a  lease ;  the  lease  was  prepared 
by  their  solicitor  and  executed.  It  is  the  general  prac- 
tice for  the  lessor's  solicitor  to  prepare  the  lease,  and  for 
the  lessee  to  pay  the  solicitor ;  the  lessee  having  refused 
so  to  do,  the  lessors  paid  him,  as  they  might  have  been 
compelled  to  do ;  and  the  Court  decided  that  an  action 
was  maintainable  by  them  for  money  paid  at  the  lessee's 
request. 

I  must  further  observe  upon  this  class  of  cases,  and 
also  upon  the  next,  that,  not  only  is  the  request  implied, 

[oC]  See  judgment  of  Queen's  Bench  in  Batard  v.  Hawes,  22  L.  J.  (Q. 
B.)  443  ;  2  E.  &  B.  (75  E.  C.  L.  R.)  287. 

(6)  8  T.  R.  308.  See  also  Johnson  v.  Royal  Mail  Steam  Packet  Co., 
L.  R.,  3  C.  P.  38,  37  L.  J.  (C.  P.)  33. 

(c)  3  Ring.  N.  C.  (32  E.  C.  L.  R.)  10 ;  Webb  v.  Rhodes,'  3  Bing.  N.  C. 
732  ;  Moon  V.  Guardians  of  Whitney  Union,  3  Bing.  N.  C.  (32  E.  C.  L. 
R.  814;  Wilkinson  v.  Grant,  25  L.  J.  (C.  P.)  233;  18  C.  B.  (86  E.  C.  L. 
R.)  319 ;  Smith  v.  Clcgg,  27  L.  J.  (Ex.)  300. 


183  smith's  law  of  contracts. 

but  the  promise  also ;  for,  if,  to  put  an  example,  A.  is  in- 
debted to  B.  in  a  certain  sum  of  money,  and  C.  is  his 
surety ;  if  C.  be  compelled  to  pay,  not  only  is  a  request 
by  A.  to  do  so  implied  by  law,  but  a  promise  by  him  to 
indemnify  C.  is  also  implied.  And,  in  an  action  brought 
by  C.  to  enforce  the  indemnity,  he  need  prove  no  ex- 
r*1  S4-1  P^'^'"^^  ^promise,  no  express  request,  but  simply 
that  A.  was  indebted  to  B.,  and  that  he,  C,  as 
A.'s  surety,  was  compelled  to  pay  that  debt.(c?)  For 
an  example  of  this,  you  may  take  the  common  case  of 
an  accommodation  acceptor  or  indorser,  who,  as  soon  as 
he  has  been  obliged  to  pay  the  money,  may  maintain  an 
action  against  the  person  for  whose  accommodation  he 
accepted  or  indorsed,  (e)^ 

Secondly^   where   the   person  who   is  sought   to   be 
charged  adopts  and  takes  advantage  of  the  benefit  of  the 

((Z)  Pawle  V.  Gunn,  4  Wmg.  N.  C.  (33  E.  C.  L.  R.)  445 ;  Jones  v.  Or- 
chard, 24  L.  J.  (C.  P.)  229  ;"l6  C.  B.  (81  E.  C.  L.  R.)  614. 

(e)  Driver  v.  Burton,  21  L.  J.   (Q.  B.)  157  ;  17  Q.  B.  (79  E.  C.  L.  R.) 

989. 

^  This  principle  is  well  illustrated  by  the  case  of  Draughan  v.  Bun- 
ting, 9  Ired.  13,  where  the  plaintiff,  who  had  indorsed  and  been  com- 
pelled to  pay  a  promissory  note,  relied  in  an  action  against  a  prior 
indorser,  on  a  parol  promise  of  indemnity  given  to  him  by  the  maker  at 
the  time  of  the  indorsement.  The  court  held  it  clear  that  the  action 
could  not  be  sustained  on  the  parol  promise,  because  being  one  "to  an- 
swer for  the  debt  or  default  of  another,"  it  came  within  the  Statute  of 
Frauds,  and  should  therefore  be  in  writing,  but  that  the  law  implied  a 
promise  to  indemnify  from  the  relation  of  suretyship,  upon  which  the 
plaintiff  might  have  recovered,  but  for  the  following  circumstance  :  the 
plaintiff,  in  order  to  prove  this  parol  promise,  had  called  the  maker  of 
the  note  as  a  witness,  and  had  been  obliged  to  execute  a  release  to  him, 
in  order  to  restore  his  competency,  and  it  was  urged  that  this  release  to 
the  principal  discharged  the  surety,  which  was  undoubtedly  correct,  as 
the  Court  held :  but  it  being  also  in  evidence  that  the  defendant  had 
acknowledged  the  receipt  of  funds  from  the  maker,  wherewith  to  dis- 
charge the  debt,  it  was  held  that  a  promise  was  implied  thus  to  apply 
the  money,  and  the  plaintiff  was  held  entitled  to  recover  upon  his  count 
for  money  paid. — r. 


EXECUTED    CONSIDERATIONS.  184 

consideration.  Suppose,  for  instance,  A.  purchases  goods 
for  B.  without  his  sanction,  B.  may,  if  he  think  fit,  re- 
pudiate the  whole  transaction ;  but  if,  instead  of  doing 
so,  he  receive  the  goods  and  take  possession  of  them, 
the  law  will  imply  a  request  from  him  to  A.  to  purchase 
them,  and  will  also  imply  a  promise  by  him  to  repay  A., 
and  he  will  be  liable  in  an  action  of  assumpsit  for  money 
paid  to  his  use,  founded  on  that  implied  promise.  (/) 
The  cases  where  goods  have  been  supplied  to  children 
without  the  knowledge  or  express  request  of  the  father, 
are  illustrations  of  this  rule.  Even  where  the  goods 
supplied  are  necessaries,  some' recognition  amounting  to 
adoption  is  requisite,  in  order  to  render  the  father  liable, 
and  to  support  the  implied  ^request  and  promise ;  i-^-.  q  r-i 
in  such  case  it  has  often  been  considered  suf- 
ficient that  the  father  should  have  seen  them  worn  by 
the  child  without  objection. (^)  See  1  Wms.  Saund. 
264,  note  1,  where  you  may,  if  you  please,  find  a  great 
deal  of  valuable  information  upon  the  whole  subject  of 
which  I  am  now  treating.^  It  is  obvious  that  the  same 
rule  will  apply  where  one  man  does  work  for  another 
without  his  request,  as  when  he  purchases  or  supplies 
goods  for  him.  But  suppose  such  a  case  as  this  :  I  do 
valuable  work  on  your  property  without  your  knowl- 
edge, have  I  a  claim  on  you  for  payment?  "How  can 
you  help  it  ?  One  cleans  another's  shoes,  what  can  the 
other  do  but  put  them  on  ?     Is  that  evidence  of  a  con- 

(/)  See  Coles  v.  Bulman,  6  C.  B.  (60  E.  C.  L.  R.)  184. 

(g)  Law  V.  Wilkin,  6  A.  &  E.  (33  E.  C.  L.  R.)  718.  See  Mortimore  v. 
Wright,  6  M.  &  W.  482  ;  Linnegar  v.  Hodd,  5  C.  B.  (57  E.  C.  L.  R.) 
437. 

^  Instances  of  the  application  of  this  rule  will  be  found  in  Paule  v. 
Gunn,  4  Bing.  N.  C.  (33  E.  C.  L.  R.)  448  ;  Derby  v.  Wilson,  14  Johns. 
378  ;  Rowntree  v.  Holloway,  13  Ala.  357 ;  Kenan  i'.  Ilolloway,  16  Ibid. 
58  ;  Guerard  v.  Jenkins,  1  Strobh.  171. — R. 


185  smith's  law  of  contracts. 

tract  to  pay  for  the  cleaning?  The  benefit  of  the  service 
could  not  be  rejected  without  refusing  the  property 
itself."  Adoption,  and  taking  advantage  of  the  benefit 
of  the  consideration  may  be  such  recognition  or  accept- 
ance of  services  as  may  be  sufficient  to  show  an  implied 
contract  to  pay  for  them,  if,  at  the  time,  the  defendant 
had  power  to  accept  or  refuse  it.  Without  such  power, 
acceptance  of  the  service  is  no  evidence  of  a  promise  to 
pay  for  it.  {hy 

r*1  RCl  *The  third  case,  in  which  a  request  is  implied, 
is  that  in  which  a  person  does,  without  compul- 
sion, that  which  the  person  sought  to  be  charged  was 
comj)ellable  by  law  to  do.  Suppose,  for  instance,  A. 
owes  .B.  £50,  and  C.  pays  it :  now  here,  if  A.  promise 
to  repay  C,  it  will  be  implied  that  the  payment  by  C. 
was  made  at  his  request,  (z)  But,  in  this  class  of  cases, 
you  will  observe,  though  the  request  is  implied  where 
there  is  a  promise,  yet  the  promise  must  be  express,  for 
the  law  will  not  imply  one,  as  in  the  last  two  cases :  (k) 
thus,  if  A.  is  B.'s  surety,  and  is  forced  to  pay  his  debt, 
the  law  implies  a  request  to  repay.     If  he  be  not  B.'s 

{h)  Taylor  v.  Laird,  25  L.  J.  (Ex.)  332,  Pollock,  C.  B.  ;  Boulton  v. 
Jones,  27  L.  J.  (Ex.)  117.  See  British  Empire  Shipping  Cotnpany  v. 
James,  27  L.  J.  (Q.  B.)  397 ;  confirmed  in  House  of  Lords,  30  L.  J.  (Q. 
B.)  229. 

(i)  Wing  V.  Mill,  1  B.  &  Aid.  104. 

{k)  Atkins  v.  Banwell,  2  East  505  ;  Rex  v.  Oldland,  4  A.  &  E.  (31  E. 
C.  L.  R.)  929. 

^  Implied  contract  to  pay  for  services  may  be  rebutted  by  proof  of 
relationship:  Smith, i?.  Milligan,  43  Penn.  St.  107  ;  Duifey  v.  Duffey,  44 
Ibid.  399 ;  Hartman's  Appeal,  3  Grant  271  ;  Amey's  Appeal,  49  Penn. 
St.  126  ;  Butler  v.  Slam,  50  Ibid.  456  ;  Daubenspeck  v.  Powers,  32  Ind. 
42.  It  is  a  general  rule  that  when  a  child  continues  with  the  parent 
after  coming  of  age  no  express  contract  for  wages  being  shown,  the  pre- 
sumption is  that  no  wages  are  to  be  paid,  but  this  presumption  may  be 
rebutted :  Adams  v.  Adams'  Adm'rs,  23  Ind.  190  ;  Hart  v.  Hess,  41  Mo. 
441. 


EXECUTED    CONSIDERATIONS.  186 

surety,  but  pays  it  of  his  own  accord,  the  law  implies 
neither  promise  nor  request,  for  a  man  cannot  make  me 
his  debtor  by  paying  money  for  me  against  my  will.^ 
Yet,  even  in  this  case,  if  B.  expressli/  promise  to  re-pay 
it,  a  request  by  him  to  pay  it  is  implied,  for  it  is  a 
maxim  that  07nnis  ratihahitio  retrotrahitur  et  mandato 
cequiparatur? 

In  the  three  cases  I  have  just  put,  the  law  implies  a 
request,  on  the  part  of  the  person  sought  to  be  charged, 
to  do  that  which  is  relied  on  as  the  consideration  for  the 
promise  upon  which  it  is  sought  to  charge  him.^ 

^  Durnford  v.  Messiter,  5  M.  &  S.  445 ;  Weakly  v.  Brahan,  2  Stew. 
500;  Keenan  v.  Holloway,  supra;  Lewis  v.  Lewis,  3  Strobh.  532; 
Mathews  v.  Colborne,  1  Ibid.  258 ;  Young  v.  Dribbell,  7  Humph. 
270.— R. 

^  Windsor  v.  Savage,  9  Mete.  348  ;  Lewis  v.  Lewis,  3  Strobh.  530;  1 
Saund.  264,  n. — r. 

A  voluntary  payment  of  money  by  one  person  for  the  use  of  another 
without  a  previous  request,  will  not  support  a  subsequent  promise  to  re- 
fund, unless  the  payment  is  beneficial  to  the  promisor :  Kenan  v.  Hollo- 
way,  16  Ala.  53.     See  Turner  v.  Partridge,  3  P.  H.  172. 

^  The  salutary  legal  principle  which  lies  at  the  bottom  of  all  the  cases 
upon  this  subject  is,  that  every  legal  liability  must  spring  from  some- 
thing actually  done,  and  not  from  something  merely  said.  From  this,  it 
is  easy  to  perceive  how  it  is,  that  from  certain  acts  the  law  will  imply  a 
promise,  which  shall  be  so  highly  regarded  that  an  express  promise  shall 
not  be  allowed  to  vary  it  (Hopkins  v.  Logan,  &c.,  supra),  and  while  at 
the  same  time  it  will  disregard  the  most  solemn  verbal  undertaking  that 
does  not  spring  from  some  actual  transaction.  Hence  it  is,  that  a  war- 
ranty after  a  sale  cannot  be  enforced,  unless  something  new  be  done  at 
the  time  of  giving  the  warranty,  for  the  promise  stands  upon  words  and 
not  upon  acts:  Roscorla  v.  Thomas,  supra;  Hogins  v.  Plympton,  11 
Pick".  97;  Williams  v.  Hathaway,  19  Pick.  387;  Bloas  t'.  Kittridge,  5 
A'erm.  28.  In  like  manner,  an  undertaking  by  a  landlord  for  his  tenant's 
quiet  enjoyment,  is,  when  made  after  the  contract  of  tenancy  has  been 
entered  into,  wholly  ineffectual  for  any  purpose :  Granger  v.  Collins,  6 
M.  &  W.  458.  So,  after  a  bargain  has  been  made,  a  naked  promise  to 
pay  more  or  take  less  than  the  contract  price,  is  useless  to  the  party  re- 
ceiving it:  Geer  v.  Archer,  2  Barb.  S.  C.  420;  Williams  r.  Hathaway, 
19  Pick.  387.    And  the  reason  of  these  cases  is  obvious,  from  the  danger 


187  smith's  law  of  contracts. 

r*l  871        *There  is  a  fourth  class  of  cases,  in  which  the 
consideration  relied  on  has  been  that  one  man 


which  would  arise  if  mere  conversations,  unsupported  by  acts,  were 
allowed  to  go  to  a  jury,  as  evidence  from  which  they  might  mould  them 
into  contracts.  Hence,  too,  arises  an  important  class  of  cases,  which 
determine  that  a  precedent  debt  cannot,  of  itself,  form  a  sufficient  con- 
sideration for  a  promise,  for  such  a  debt  arises  from  a  contract  already 
fulfilled,  and  therefore  comes  within  the  legal  principle  just  stated  : 
Hopkins  v.  Logan,  5  M.  &  W.  241  ;  Vadakin  v.  Soper,  1  Aitk.  287;  Rus- 
sell c.  Buck,  11  Verm.  176  ;  Barker  v.  Bucklin,  2  Denio  59  ;  Railroad  Co. 
V.  Johnson,  7  W.  &  S.  317-328 ;  Jackson  v.  Jackson,  7  Ala.  791  ;  although, 
when  such  a  promise  is  cotemporaneous  with  an  actual  transaction, 
such  as  a  suspension,  or  an  extinguishment  of  the  precedent  debt,  the 
acquisition  of  an  additional  security  for  its  payment,  the  commencement 
of  a  new  course  of  dealing,  or  the  like,  it  will  be  enforced  by  law,  for  it 
does  not  rest  on  mere  words:  Peate  v.  Dicken,  1  Cr.,  Mees.  &  Rose.  423 ; 
Wilson  V.  Coupland,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  228  ;  Clark  v.  Sigourney, 
17  Conn.  511 ;  Phillips  v.  Bergen,  2  Barb.  608  -,  Smith  v.  Weed,  20  Wend. 
184  ;  Meld  V.  Nichols,  17  Pick.  538  ;  Taylor  v.  Meek,  4  Blackf.  388. 

The  sound  reasons  for  what  would  at  first  appear  to  be  a  pertinacious 
adherence  to  a  narrow  rule,  are  thus  expressed  by  Mr.  Hare,  after  a  re- 
view of  the  authorities,  in  the  note  to  Vadekin  v.  Soper,  2  Amer.  Lead. 
Cas.  "  The  general  principle,"  said  he,  "  which  requires  that  every 
express  contract  shall  be  sustained  by  a  cotemporaneous  consideration, 
is,  in  e-ffect,  a  rule  of  evidence  of  great  importance,  to  the  exclusion  of 
fraud  and  misrepresentation  from  the  tribunals  of  justice.  If  a  mere 
verbal  promise,  without  consideration,  were  sufficient  to  create  a  legal 
liability  and  sustain  an  action,  no  safety  could  be  found  against  the 
misrepresentation  of  the  most  ordinary  conversation,  unless  in  the  saga- 
city of  the  jury  called  to  determine  (perchance  on  a  prejudice  or  false 
relation),  whether  it  was  meant  or  understood  as  a  positive  obligation 
for  the  payment  of  money,  or  the  fulfilment  of  an  engagement  of  any 
other  description.  And  if  a  past  consideration  were  sufficient  to  give 
such  an  engagement  validity,  the  danger  would  be  as  great ;  for  men, 
though  but  little  disposed  to  promise  further  compensation  for  past  ser- 
vices in  their  own  case,  are  sufficiently  ready  to  believe  such  an  allega- 
tion in  that  of  another,  especially  if  supported  by  any  plausible  pre- 
tence, that  the  amount  originally  bargained  for  was  insufficient.  The 
chance  of  an  erroneous  verdict  Avould  be  still  greater  in  those  instances, 
in  which  a  bargain  has  resulted  disadvautageously  for  one  of  the  parties, 
and  where  he  has  induced  the  other  to  hold  any  language  which  can  be 
construed  or  perverted  into  a  promise  of  indemnification.  The  neces- 
sity for  proving  the  existence  of  a  cotemporaneous  consideration,  obvi- 


7T^ 

l^kECUTED   CONSIDERATIONS.  187 

has  done  for  another  something  which  that  other,  though 
not  legally,  is  morally  bound  to  do.     In  such  cases  it  is 


ates  this  danger,  by  bringing  the  evidence  back  from  words  to  things, 
which  are  not  so  easily  suscei^tible  of  mistake  or  falsification.  The  un- 
certainty which  results  from  looking  to  the  subsequent  language  of  a 
party,  as  the  test  of  his  liability,  has  been  found  so  great  in  the  cases 
arising  under  the  Statute  of  Limitations,  as  to  lead  to  the  introduction, 
in  England,  and  some  parts  of  this  country,  of  legislative  enactments, 
making  it  necessary  that  the  acknowledgment  of  the  debt  should  be  in 
writing,  and  not  be  proved  by  mere  verbal  testimony.  Yet  in  that  case, 
the  only  effect  of  the  evidence  is  to  revive  an  anterior  liability,  of  which 
the  original  existence  is  proved  aliunde^  and  it  is  therefore  easy  to  imag- 
ine what  would  be  the  result  if  every  transaction  of  human  life  were 
open  to  the  interpretation  which  a  witness  or  jury  might  choose  to  give 
to  any  subsequent  conversation  of  which  it  is  made  the  subject.  It 
would,  therefore,  appear  that  the  rules  of  the  common  law  with  respect 
to  consideration,  so  far  from  deserving  the  reproach  of  narrowness  and 
illiberality  which  has  been  sometimes  cast  upon  them,  are  really  founded 
upon  a  just  appreciation  of  the  uncertainty  of  testimony,  and  the  exi- 
gencies of  life,  and  should  be  sedulously  upheld  and  applied,  and  not 
explained  away  or  disregarded.  It  may  safely  be  asserted  that  they  do 
more  to  prevent  fraud  and  perjury  than  any  legislative  enactment  which 
has  been,  or  can  be  devised  for  that  purpose,  and  that  if  they  had  not 
been  laid  down  and  defined  by  judicial  sagacity,  it  would  be  necessary 
to  introduce  them  by  legislative  authority.'' 

It  is  necessary  to  distinguish  the  class  of  cases  referred  to,  from  those 
which  decide  that  a  promise  to  pay  a  debt  barred  by  the  Statutes  of 
Bankruptcy  or  Limitation  is  based  upon  sufficient  consideration.  Some 
expressions  in  the  cases  would  seem  to  conflict  with  the  general  prin- 
ciple just  referred  to,  but  in  reality  the  grounds  of  the  decision  are  in 
harmony.  The  promise  of  a  debtor  to  pay  a  debt  so  barred,  although  it 
is  often  called  a  new  promise,  is  in  reality  rather  a  icaiver  of  the  bar 
which  the  statute  has  interposed.  In  pleading,  it  is  sufficient  to  count 
on  the  original  debt,  and  when  the  statute  is  pleaded,  the  evidence 
offered  under  the  replication  of  a  new  promise  or  acknowledgment 
within  six  years,  forms  no  variance  beuveen  the  declaration  and  the 
proof,  for  whether  the  defendant  is  liable  by  reason  of  the  original  con- 
sideration for  the  debt,  or  by  reason  of  his  subsequent  acknowledgment, 
is  immaterial,  provided  the  plaintiff  prove  the  original  consideration,  and 
the  liability  at  the  time  of  suit  brought,  and  if  that  liability  arises  from 
the  new  promise,  it  is  just  such  a  liability  as  the  law  implies  from  the 
old  consideration,  and  hence  the  new  promise  accords  with  the  old  ope, 
and  there  is  no  variance.  This  will  be  found  fully  explained  in  the  note 
14 


187  smith's  law  of  contracts. 

clear,  that,  if  there  be  no  express  promise  to  remunerate 
him,  reminieration  cannot  be  enforced.  But  it  has  been 
a  great  question,  and  has  been  frequently  discussed, 
whether,  even  if  there  be  an  express  promise,  any  request 
can  be  implied  in  order  to  support  the  consideration.  On 
this  question,  which  is  but  a  branch  of  one  which  has  been 
often  the  subject  of  anxious  consideration,  namely,  in 
what  cases  a  moral  obligation  is  a  sufficient  consideration 
to  support  a  promise,  it  is  worth  while  to  read  the  cases 
cited  in  the  note.(/)  But  it  may  be  considemd.  as  now^ 
settled,  that  a  merely  moral  consideration  will  not  support 
a  promise,  (w?)  A  mere  moral  consideration  has  been  saiJ 
by  high  authority  to  be  nothing  in  law.  (n)  "A  subsequent 
express  promise,"  said  Tindal,  C.  J.,  "  will  not  convert 
into  a  debt  that  which  of  itself  was  not  a  legal  debt."(o) 
And  the  Court  of  Queen's  Bench,  in  the  case  of  East- 
r*l  S^l  wood  ''""v.  Kenyon,  (p)  quotes  with  approval  the 
conclusion  arrived  at  in  the  note  to  Wennall  v. 
Adney  just  cited,  "  that  an  express  promise   can  only 

(Z)  Lee  V.  Muggeridge,  5  Taunt.  (1  E.  C.  L.  K.)  36  ;  Atkins  v.  Ban- 
well  2  East  505  •,  and  the  note  to  Wennall  v.  Adney,  3  B.  &  P.  247. 

{m)  Monkman  v.  Shepherdson,  11  A.  &  E.  (39  E.  C.  L.  K.)  415; 
Beaumont  v.  Reeve,  8  Q,.  B.  (55  E.  C.  L.  R.)  483.  See  Hicks  v.  Gregory, 
8  C.  B.  (65  E.  C.  L.  R.)  378. 

(n)  Jennings  v.  Brown,  9  M.  &  W.  501. 

[o]  Kane  v.  Button,  7  M.  &  Gr.  (49  E,  C.  L.  R.)  807. 

[p)  11  A.  &  £.  (39  E.  C.  L.  R.)  438.  447  ;  Deacon  v.  Gridley,  24  L.  J. 
(C.  P.)  17  ;  15  C.  B.  (80  E.  C.  L.  R.)  295. 

to  Whitcomb  v.  Whiting,  1  Smith's  Lead.  Gas.  621,  4th  Am.  ed.  But 
in  the  ordinary  case  of  a  precedent  debt,  a  declaration  setting  forth  that 
the  plaintiflF  had  contracted  to  build  a  wagon  for  $100,  and  that  having 
done  so,  the  defendant,  in  consideration  thereof,  promised  to  pay  him 
$200,  would  be  clearly  bad,  for  such  a  promise  would  not  be  implied  by 
law  from  the  old  consideration,  which  was  the  only  one.  So,  in  the  case 
of  an  indebtedness  to  two  persons  jointly,  a  promise  by  the  debtor,  in 
consideration  of  the  promise,  to  pay  one-half  of  the  debt  to  one  of  them, 
could  not  be  enforced,  for  it  is  not  such  a  promise  as  the  law  implies 
from  the  old  consideration,  and  this  was  the  case  of  Vadakin  v.  Soper, 
supra. — R. 


EXECUTED    CONSIDERATIONS.  188 

receive  a  precedent  good  consideration,  which  might 
have  been  enforced  at  law  through  the  medium  of  an 
implied  promise,  had  it  not  been  suspended  hy  some  posi- 
tive rule  of  law ;  but  can  give  no  original  cause  of  action, 
if  the  obligation  on  which  it  is  founded  never  could  have 
been  enforced  at  law,  though  not  barred  by  any  legal 
maxim  or  statute  provision."  ((^)^ 

(g)  See  Flight  v.  Reed,  1  H.  &  C.  703,  32  L.  J.  (Ex.)  265,  for  an  illus- 
tration of  this  rule. 

^  In  some  of  the  earlier  American  cases,  there  were  many  dicta  and  a 
few  decisions  in  favor  of  a  moral  consideration  being  sufficient  to  sup- 
port a  promise  :  Greeves  v.  M'Allister",  2  Binn.  591  ;  Willing  v.  Peters, 
12  S.  &  R.  177  ;  Doty  v.  Wilson,  14  Johns.  378  ;  but  these  cases,  like  the 
English  decisions  in  Muggeridge,  and  Wing  v.  Mill,  1  B.  &  Aid.  104,  were 
subsequently  expressly  overruled  by  Snevily  v.  Reed,  9  Watts  396  ;  Ken- 
nedy v.  Ware,  1  Penn.  St.  445  ;  Mills  v.  Wyman,  3  Pick.  207  ;  Beau- 
mont V.  Reeve,  8  Q.  B.  (55  E.  C.  L.  R.)  483 ;  Cook  v.  Bradley,  7  Conn. 
57;  Loomis  v.  Newhall,  15  Pick.  159  :  Dodge  v.  Adams,  19  Ibid.  429  : 
Kinnerly  v.  Morton,  8  Mo.  698  ;  Kenan  v.  Ilolloway,  16  Ala.  58  ;  and 
such  a  doctrine  may,  perhaps,  be  now  fairly  considered  as  having  no 
established  place  in  the  jurisprudence  of  either  country. — r. 

See  EUicott  v.  Peterson,  4  Md.  476  ;  Womack  i'.  Womack,  8  Tex.  397 ; 
Turner  v.  Chrisman,  20  Ohio  332;  M'Farland  v.  Mathis,  5  Eng.  560; 
Nash.  V.  Russell,  5  Barb.  556  ;  Watkins  v.  Halstead,  2  Sand.  311  ;  Gear 
V.  Archer,  2  Barb.  420;  M'Kinley  v.  0"Keson,  5  Penn.  St.  369.  There 
would  appear,  however,  to  be  authority  for  an  important  exception  to 
the  general  principle  that  a  moral  obligation  is  not  a  sufficient  conside- 
ration. Wherever  an  actual  benefit  has  been  enjoyed  from  the  unso- 
licited services  of  another,  it  is  a  sufficient  foundation  for  an  express 
promise,  although  no  promise  will  be  implied.  Thus,  an  uncompleted 
contract  on  a  railroad  was  assigned  by  the  contractor  for  the  benefit  of 
creditors.  There  was  in  the  hands  of  the  railroad  company  a  fund  con- 
sisting of  retained  percentage,  the  assignor's  right  to  which  depended 
upon  the  completion  of  the  contract.  The  assignor  made  a  contract  with 
the  plaintiff  that  he  shotild  complete  the  contract  at  his  own  expense, 
and  receive  a  certain  compensation.  The  creditors,  for  whose  benefit  the 
assignment  had  been  made,  drew  an  order  on  the  assignee  in  favor  of 
plaintiff,  for  the  amount  expended  by  him  on  the  work,  and  for  a  cer- 
tain sum  for  his  trouble.  It  was  held  that  the  work  having  been  com- 
pleted by  the  plaintifl',  the  order  became  irrevocable,  whether  drawn  be- 
fore or  after  performance  of  the  work.     And  one  of  the  creditors  receiv- 


188 


SMITH  S    LAW    OF    CONTRACTS. 


I  have  now  said  what  I  intended  to  say  with  regard 
to  the  sufficiency  of  the  consideration,  and  the  result 
may  be  thus  summed  up: — 


ing  a  dividend  out  of  the  fund  from  the  assignee,  is  liable  to  the  plain- 
tiff in  an  action  for  money  had  and  received :  Cunningham  v.  Garvin, 
10  Penn.  St.  366.  Bell,  J. :  "  If  it  be  admitted  that  the  order  was 
made  after  the  completion  of  the  work,  we  have  a  case  of  a  past  con- 
sideration flowing  from  a  benefit  conferred.  Now,  though  anciently  this 
was  thought  inadeqate  to  support  a  present  promise  to  pay,  it  has  long 
been  settled  that  a  benefit  derived  from  the  unsolicited  services  of 
another,  creates  a  moral  obligation  of  sufiicient  potency  to  sustain  an 
express  promise."  On  the  other  hand,  where  a  grandfather  devised  to 
his  grandson  a  tract  of  land,  which,  by  his  will,  he  directed  should  be 
patented,  and  the  price  thereof  paid  out  of  his  estate,  an  uncle  of  the 
devisee's  obtained  the  patent  and  paid  for  it,  and  brought  an  action 
against  the  executors  of  the  grandfather's  estate  to  recover  it  back  ;  it 
was  decided  that  it  was  a  voluntary  payment  by  him  which  gave  no 
right  of  action  :  Turner  v.  Patridge,  3  P.  R.  172.  Gibson,  C.  J.  :  "  In 
procuring  the  patent  without  compulsion  of  the  law,  or  request  of  the 
party  interested,  the  plaintifi"  laid  the  defendants  under  a  moral  obliga- 
tion, which,  though  sufficient  as  a  consideration  for  an  express  promise, 
raised  no  promise  by  implication  of  law:"  Baker  v.  Gregory,  28  Ala. 
544.  Taxes  were  paid  through  mistake  by  one  not  the  owner,  and  the 
owner  promised  to  repay.  The  promise  and  benefit  were  held  equiva- 
lent to  a. previous  request :  Nixon  v.  Jenkins,  1  Hilton  318.  When  one 
partner  purchases  of  his  copartner  his  interest  in  the  partnership  pro- 
perty, under  a  mistake  as  to  the  true  condition  of  the  partnership 
accounts,  but  without  fraud  in  the  partner  selling,  there  is  no  legal 
consideration  for  a  promise  of  the  latter  to  make  up  the  amount  of  the 
mistake.  The  moral  consideration  is  insufficient:  Eakln  z).  Fenton,  15 
Ind.  59.  It  is  a  general  but  not  a  universal  rule  that  a  moral  obligation 
is  a  sufiicient  consideration  to  uphold  an  express  promise  :  Montgomery 
V.  Lampton,  3  Mete.  (Ky.)  519.  An  express  promise  to  pay  for  past  ex- 
penditures made  by  a  third  person  for  a  parent  is  not  binding  on  the 
child  for  want  of  consideration  :  Dawson  v.  Dawson,  12  Iowa  512. 
A  mere  moral  obligation  constitutes  no '  legal  consideration  for  a  con- 
tract :  Updike  V.  True,  2  Beas.  151 ;  Shepard  v.  Rhodes,  7  R.  I.  470. 
The  moral  obligation  of  the  original  contract  is  a  sufficient  considera- 
tion for  a  promise  to  perform  it  made  within  the  time  limited  by  the 
statute,  and  such  a  pi'omise  will  remove  the  bar  of  the  Statute  of  Limi- 
tations :  Pritchard  v.  Howell,  1  Wis.  131.  Where  there  is  a  precedent 
duty,  which  would  create  a  sufficient  legal  or  equitable  right  if  there 
had  been  an  express  promise  at  the  time,  or  where  there  is  a  precedent 


EXECUTED    CONSIDERATIONS.  188 

Any  advantage  to  the  person  promising,  or  damage, 
inconvenience,  liability,  or  charge  to  the  person  to  whom 
the  promise  is  made,  constitutes  a  sufficient  consideration 
to  uphold  a  promise;  but  if  that  consideration  be  exe- 
cuted, that  is,  if,  at  the  time  of  making  the  promise, 
that  which  is  to  be  the  consideration  for  it  has  already 
taken  place,  in  such  case  there  must  have  been  a  request 
by  the  person  promising,  in  order  to  render  such  a 
consideration  sufficient.  If  an  express  request  can  be 
shown,  there  can  be  no  difficulty ;  but,  if  not,  p^.-.  oq-i 
*the  law  will  imply  one  in  certain  cases,  and 
those  cases  are — 

1st.  Where  the  consideration  consists  in  the  person 
to  whom  the  promise  is  made  being  compelled  to 
do  that  which  the  person  making  it  ought  to  have 
done,  and  was  compellable  to  do. 
2dly.  Where  the  consideration  consists  in  something 
the  benefit  of  which  the  person  promising  has 
adopted  and  enjoyed, 
odly.  Where  the  consideration  consists  in  the  person 
to  whom  the  promise  is  made  having  voluntarily  done 
that  which  the  person  promising  ought  to  have 
done,  and  was  compellable  to  do,  in  which  third  case 
the  promise  must  be  an  express  one,  whereas  in  the 
two  former  the  law  implies  the  promise  as  well  as 
the  request. 

consideration  which  is  capable  of  being  enforced,  and  is  not  extin- 
guished, unless  at  the  option  of  the  party,  founded  upon  some  defence 
which  the  law  justifies  but  does  not  require  him  to  assert,  an  express 
promise  will  create  or  revive  a  just  cause  of  action.  So  if  a  contract  is 
voidable,  but  founded  on  a  consideration  otherwise  valuable,  an  express 
promise  will  support  it ;  but  not  if  it  is  originally  void.  A  promise  by 
a  woman  who  is  sole  to  pay  a  debt  contracted  while  she  was  covert  will 
not  be  valid,  because  such  contract  is  ab  origine  void,  and  not  voidable  : 
Porterfield  v.  Butler,  47  Miss.  165  ;  and  see  Shepard  v.  Rhodes,  7  R.  I. 
470 ;  Musser  v.  Ferguson,  55  Penn.  St.  475  ;  Cobb  v.  Cowdery,  40 
Yerm.  25  ;  Seymour  v.  Marlboro,  Ibid.  171. 


189  smith's  law  of  contracts. 

The  remaining  part  of  a  contract  is  the  promise,  as 
to  which  the  law  in  general  leaves  to  the  will  of  the 
parties  this  part  of  their  mutual  arrangement.  Indeed, 
this  has  almost  been  said  already  in  other  words ;  for, 
where  it  is  laid  down  that  the  law  will  not  weigh  the 
adequacy  of  the  consideration,  (r)  it  is  implied  that  it 
will  not  weigh  that  of  the  promise.  The  law,  however, 
will  no  more  enforce  an  illegal  promise  than  an  illegal 
consideration ;  but  in  cases  of  executed  contracts  there 

r*1  QOn  ^^  ^  ^^^^^  ^^  ^^^  which  is  well  worthy  of  atten- 
tion. *It  is,  that  where  the  law  implies  a  cer- 
tain promise  from  a  consideration  executed — that  con- 
sideration will  not  support  any  other  promise  than  the 
one  which  the  law  implies.  (^)  It  is  not  difficult  to  see 
that  this  rule  results  from  the  principle  which  requires 
that  every  promise  should  be  supported  by  a  considera- 
tion ;  for,  when  the  consideration  in  question  is  one  from 
which  the  law  implies  a  certain  promise,  that  promise 
evidently  exhausts  the  consideration,  and  there  is  noth- 
ing left  to  support  any  other  promise.  Such  promise, 
consequently,  however  expressly  made,  is  nudum  pactum. 
Thus,  it  has  been  decided,  (^)  that  an  account  stated  and 
a  sum  thereupon  found  to  be  due  to  the  plaintiff  from 
which  the  law  implies  a  promise  to  pay  in  prcesenti,  will 
not  support  a  promise  to  pay  in  futuro;  and  each  of  the 
Judges  (m)  said,  that,  in  order  to  render  the  promisor 
liable  to  pay  on  a  future  day,  there  ought  to  be  some 
new  consideration.     Similar  in  principle  to  the  instance 

{r)  Ante,  p.  161. 

[s)  Elderton  v.  Emmens,  6  C.  B.  (60  E.  C.  L.  R.)  160,  in  Exchequer 
Chamber. 

[t)  Hopkins  v.  Logan,  5  M.  &  W.  241 ;  Granger  v.  Collins,  6  M.  &  W. 
458  ;  Roscorla  v.  Thomas,  3  Q.  B.  (43  E.  C.  L.  R.)  234.  See  Walker 
V.  Rostron,  9  M.  &  W.  411 ;  and  1  Smith's  L.  C,  6th  ed.  147. 

[u]  Lord  Abinger,  C.  B,,  and  Parke,  Alderson  and  Maule,  BB.,  in 
Hopkins  V.  Logan,  supra. 


ILLEGAL   CONTRACTS.  190 

just  mentioned  in  the  case,  where  one,  having  become 
tenant  to  another  of  a  farm,  undertook  to  make  a  certain 
quantity  of  fallow,  to  spend  £60  worth  of  manure 
yearly  thereon,  and  to  keep  the  buildings  in  repair:  an 
^undertaking  which  was  considered  unavailable  piqa-i-i 
in  law,  because  no  other  consideration  existed 
but  the  fact  that  the  relation  of  landlord  and  tenant  had 
been  created  between  the  parties,  and  the  obligations 
sought  to  be  enforced  are  not  implied  by  law  from  that 
mere  fact.C-r)  The  promise,  as  the  Court  of  Exchequer 
said  in  a  subsequent  and  closely  analogous  case,(y)  is 
laid  more  largely  than  the  law  will  imply  from  such  a 
relation. 

Another  instance  of  the  same  principle,  drawn  from 
a  different  class  of  cases,  is  afforded  by  the  case  of  Ros- 
corla  V.  Thomas,  {z)  in  which  the  declaration  alleged  that, 
in  consideration  that  the  plaintiff  had  bought  a  horse  of 
the  defendant  at  a  certain  price,  the  defendant  promised 
that  it  did  not  exceed  five  years  old,  and  was  sound  and 
free  from  vice ;  and  the  plaintiff  having  obtained  a  ver- 
dict, the  Court  arrested  the  judgment,  because  the  only 
promise  which  could  be  implied  from  the  consideration 
was  to  deliver  the  horse  upon  request ;  and,  therefore, 
however  expressly  the  promise  alleged  might  have  been 
made,  the  consideration  would  not  support  it. 

Proceeding  in  the  order  in  which  I  stated  to  you  that 
it  was  my  intention  to  proceed,  the  next  subject  at 
which  we  arrive  is,  the  effect  of  illegality  *upon  p;:  109-1 
the  contract.  And,  upon  this  subject,  I  have 
already  said  generally,  that  every  contract,  be  it  by 
deed,  or  be  it  without  deed,  is  void  if  it  stipulate  for 

(x)  Brown  v.  Crump,  1  Marsh  567. 

{y)  Granger  v.  Collins,  6  M.  &  W.  458  ;  Jackson  v.  Cobbin,  8  M.  &  W. 
790. 

(z)  3  Q.  B.  ',43  E.  C.  L.  R.)  234. 


192  smith's  law  of  contracts. 

the  performance  of  an  illegal  act,  or  if  it  be  founded 
upon  an  illegal  consideration.  Ex  turpi  causa  non  oritur 
actio  is  the  maxim  of  our  law,  as  well  as  of  the  civil,  (a) 

(a)  It  is  immaterial  whether  the  illes-allty  be  part  of  or  only  introduc- 
tory to  the  cause  of  action  ;  if  the  plaintiff  requires  any  aid  from  an 
illegal  transaction  to  make  out  his  case,  he  cannot  maintain  it :  Simpson 
V.  Bloss,  7  Taunt.  (2  E.  C.  L.  R.)  246;  [Scott  v.  Dufiy,  15  Penn.  St.  18  ; 
Deering  v.  Chapman,  22  Me.  488.]  This  rule  was  upheld  in  the  very 
recent  case  of  Fivaz  v.  Nicholls,  15  Law  Jour.  125,  C.  P.  [2  C.  B.  (52 
E.  C.  L.  R.)  500,]  where  the  plaintiff  brought  an  action  on  the  case 
against  the  defendant  for  having  corruptly  conspired  to  eheat  the  plain- 
tiff, and  deprive  him  of  his  costs  in  a  previous  action  on  a  bill  of  ex- 
change, in  which  the  plaintiff  obtained  judgment  on  the  ground  that  it 
was  given  for  an  illegal  consideration  ;  but  it  having  appeared  that  the 
bill  had  been  originally  indorsed  by  the  plaintiff  to  the  defendant  to 
compromise  a  felony,  this  illegality  being  the  foundation  of  the  subse- 
quent action,  was  held  to  invalidate  it.  [And  to  the  same  effect  are 
Bridge  v.  Hubbard,  15  Mass.  96  :  Tuthill  v.  Davis,  20  Johns.  287  ;  Ed- 
wards V.  Skirving,  1  Brev.  548  ;  Coulter  v.  Robertson,  14  Sm.  &  Marsh. 
(Miss.)  29,  where  the  illegality  of  the  original  consideration  was  held  to 
taint  all  the  subsequent  securities  flowing  from  it.— {rT] 

It  is  well  settled  that  in  i-eference  to  all  acts  or  contracts,  which  are 
unlawful  on  account  of  their  immorality  or  their  tendency  to  promote 
it,  or  because  they  are  hostile  to  public  policy,  the  parties  thereto  are 
in  pari  delicto.  So,  money  paid  or  land  conveyed  on  an  immoral  con- 
tract, cannot  be  recovered  back :  White  v.  Hunter,  8  Fost.  128.  Every 
new  agreement  entered  into  for  the  purpose  of  carrying  into  effect  any 
of  the  unexecuted  provisions  of  a  previous  illegal  contract  is  void  :  Gray 
V.  Hook,  4  Comst.  449. 

When  money  due  on  an  illegal  contract  is  paid  to  an  agent  of  one  of 
the  parties,  such  agent  being  no  party  in  interest  to  the  illegal  contract, 
cannot  set  up  the  illegality  as  against  the  claim  of  his  principal :  Evans 
V.  Trenton,  4  Zabr.  764.  Where  an  obligor  sued  on  his  bond,  which 
exhibits  no  evidence  of  fraud,  interposes,  by  way  of  defence  a  fraudulent 
agreement  between  himself  and  the  obligor,  he  becomes  the  actor;  and 
the  maxim  in  pari  delicto  melior  est  conditio  possidentis  aut  defendentis, 
is  applied  against  him  and  not  in  his  favor  :  Hendi-ickson  v.  Evans,  25 
Penn.  St.  441.  A  party  to  an  illegal  contract  will  not  be  permitted  to 
avail  himself  of  its  illegality,  until  he  restores  to  the  other  party  all 
that  had  been  received  from  him  on  such  illegal  contract :  Hunt  v.  Tur- 
ner, 9  Tex.  385.  And  see  also  Jones  v.  Davidson,  2  Sneed  447  ;  Gibson 
V.  Pearsall,  1  E.  D. .  Smith  90 ;  Bates  v.  Watson,  1  Sneed  376  ;  Scher- 
merhorn  v.  Talman,  4  Kern.  93  ;  Tracy  v.  Talmage,  Ibid.  162. 


ILLEGAL    CONTRACTS.  192 

A  deed,  for  the  purpose  of  charging  the  maker,  requires, 
as  we  haA^e  seen,  no  consideration  at  all  to  support  it ; 
but  an  illegal  consideration  is  worse  than  none,  and  if  it 
be  founded  upon  such  an  one,  it  will  be  void,  nor  will 
the  rules  relating  to  estoppel  prevent  the  party  from 
setting  that  defence  up.  A  simple  contract  requires^  as 
we  have  seen,  a  consideration  to  support  it.  If- the  con- 
sideration be  illegal,  it  is  a  fortiori  void ;  nor  will  the 
rules  which  I  endeavored  to  explain  regarding  the  inad- 
missibility of  parol  evidence  to  contradict  a  writing, 
prevent  that  defence  from  being  set  up  where  the  ille- 
gality does  not  appear  on  the- face  of  the  instrument, 
any  more  than  the  doctrine  of  estoppel  will  avail  to  pre- 
vent inquiry  into  the  true  consideration  for  a  deed. 
Parties  cannot  deceive  the  law  by  the  form  of  their  con- 
tracts ;  and,  as  an  illegality  in  the  consideration  is  fatal, 
so,  and  upon  the  very  same  grounds,  is  one  in  the  pro- 
mise. ''You  shall  not"  says  the  L.  C.  J.,  in  Collins  v. 
Blantern,(«)  "stipidate  for  im'qidt?/"^ 

*If  the  consideration  be  legal,  a  promise  to  p:.-,Qo-i 
do  several  acts,  some  illegal  and  some  legal,  •-  -^ 
renders  the  contract  void  as  to  the  illegal  acts ;  but  if 
any  part  of  the  consideration  be  illegal,  the  whole  con- 
tract fails. (^) 

Now  illegality  is  of  two  sorts  :  it  exists  at  common 
law,  or  is  created  h?/  some  statute. 

[a)  2  Wils.  341 ;  1  Smith's  L.  C.  325,  6th  ed.     See  ante,  p.  17,  where 
this  subject  is  partially  treated  of. 
(6)  Ante,  p.  19. 

^  Where  an  entire  agreement  contains  an  element  which  is  legal  and 
one  which  is  against  public  policy  and  therefore  void,  the  legal  consid- 
eration cannot  be  separated  from  that  which  is  illegal  so  as  to  found 
an  action  on  it:  Ross  v.  Truax,  21  Barb.  361 ;  Pettit  v.  Pettit,  32  Ala. 
288;  Collins  r.  Merrell,  2  Mete.  (Ky.)  163;  Valentine  v.  Stewart,  15 
Cal.  387 ;  Gelpcke  v.  Dubuque,  1  Wall.  (S.  C.)  221. 


193  smith's  law  of  contracts. 

!A  contract  illegal  at  common  law  is  so  on  one  of 
three  grounds :  either  because  it  violates  morality ;  or 
I  because  it  is  opposed  to  the  policy  of  the  latv  ;  or  because  it 
I  is  tainted  with  fraud. 

Of  the  first  class — those,  namely,  which  are  void  be- 
cause they  violate  the  principles  of  morality — you  will 
find  an  example  in  the  case  of  Fores  v.  Johnes,(c)  in 
which  Mr.  Justice  Lawrence  held,  that  a  printseller 
could  not  recover  the  price  of  libellous  publications 
which  he  had  sold  and  delivered  to  the  defendant. 
"  For  prints,"  said  his  Lordship,  "  whose  objects  are 
general  satire  or  ridicule  of  prevailing  fashions  or  man- 
ners, I  think  the  plaintiff  may  recover;  but  I  cannot 
permit  him  to  do  so  for  such  whose  tendency  is  immoral, 
nor  for  such  as  are  libels  on  individuals,  and  for  which 
the  plaintiff  might  be  rendered  criminally  answerable 
for  a  libel. "^ 

(c)  4  Esp.  97. 

^  So  it  was  held  that  the  printer  of  the  "  Memoirs  of  Harriet  Wil- 
.  son,"  could  not  recover  the  price  of  printing  them,  the  work  being 
immoral  and  libellous  :  Poplett  v.  Stockdale,  R.  &  M.  (21  E.  C.  L.  R.) 
337. 

Nothing  is  better  settled  than  that  a  promise  in  consideration  of  future 
illicit  cohabitation  is  void:  Walker  v.  Perkins,  3  Burr.  1568;  Rex  v. 
Inhabitants  of  Withringfield,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  912 ;  Winne- 
brun  V.  Weisiger,  3  Mon.  35 ;  Travinger  v.  M'Burney,  5  Cow.  253 ;  and  it  is 
immaterial  whether  such  promise  be  or  be  not  backed  by  the  solemnity  of 
a  seal :  Walker  v.  Perkins.  But  where  the  sealed  instrument  is  given  in 
consideration  o(])atst  seduction  or  cohabitation,  it  will  be  enforced :  Turner 
V.  Vaughan,  2  Wils.  339  ;  Wye  v.  Mosely,  6  B.  &  C.  (13  E.  C.  L.  R.)  133 ; 
while  a  parol  promise,  based  upon  such  a  consideration,  is  worthless  : 
Beaumont  v.  Reeve,  8  Q.  B.  (55  E.  C.  L.  R.)  483  ;  Singleton  v.  Bremar, 
Harp.  201.  The  distinction  between  these  classes  of  cases  is  this  :  all  con- 
tracts, whether  sealed  or  parol,  based  wTpon  future  immoral  connection,  are 
void,  because  to  enforce  thein  would  be  to  offer  a  premium  for  future 
immorality.  And  all  parol  contracts  in  consideration  of  past  connec- 
tion are  void,  on  the  simple  ground  of  the  consideration  being  executed, 
and  the  ti-ansaction  not  being  such,  as  according  to  the  rules  already 
explained,  the  law  would  imply  a  promise  to  pay  for.  But  a  specialty  given 


ILLEGAL    CONTKACTS.  193 

For  this  reason  the  printer  of  an  immoral  and  libel- 
lous work  cannot  maintain  an  action  for  the  price  of  his 
labor  against  the  publisher  who  employed  him.  "1 
have  no  hesitation,"  said  Best,  *C.  J.,  "  in  de- 
daring  that  no  person  who  has  contributed  his  ^  -1 
assistance  to  the  publication  of  such  a  work  can  recover 
in  a  Court  of  Justice  any  compensation  for  the  labor  so 
bestowed.  The  person  who  lends  himself  to  the  viola- 
tion of  the  public  morals  and  laws  of  the  country,  shall 
not  have  the  assistance  of  those  laws  to  carry  into  exe- 
cution such  a  purpose.  It  would  be  strange  if  a  man 
could  maintain  an  action  at  law  for  doing  that  for  which 
he  could  be  fined  and  imprisoned.  Every  one  who  gives 
his  aid  to  such  a  work,  though  as  a  servant,  is  responsi- 
ble for  the  mischief  of  it"{d)  Upon  these  and  similar 
reasonings,  it  has  been  held,  that  the  first  publisher  of 
a  libellous  or  immoral  work  cannot  maintain  an  action 
against  any  person  for  publishing  a  pirated  edition,  (e) 

{d)  Poplett  V.  Stockdale,  R.  &  M.  (21  E.  C.  L.  R.)  337. 
(e)  Stockdale  v.  Onwhyn,  5  B.  &  C  (11  E.  C.  L.  R.)  173. 

for  past  connection  can  be  enforced,  because  there  is  a  consideration, 
viz.,  that  imported  by  the  seal,  and  as  regards  the  immorality,  the  injury 
having  been  already  done,  there  is  no  principle  of  law  that  forbids  its 
being  remedied,  and  it  has  been  latterly  held  that  even  if  the  connec- 
tion be  continued  after  the  giving  of  the  bond,  that  will  not  vitiate  the 
instrument,  if  such  continuance  did  not  enter  into  the  transaction  :  Hall 
V.  Palmer,  3  Hare  532  ;  and  in  a  trial  at  Nisi  Prius,  Best,  C.  J.,  left  it 
to  the  jury  to  determine,  whether  at  the  time  of  giving  such  bond,  the 
continuance  of  the  connection  formed  part  of  the  transaction,  for  if  it 
did,  the  obligee  could  not  recover ;  if  it  did  not,  there  was  nothing  in 
the  transaction  prohibited  by  the  law :  Friend  v.  Harrison,  2  C.  &  P. 
(12  E.  C.  L.  R.)  584. 

There  is  a  class  of  cases  which  determine  that  promises  in  consider- 
ation of  a  forbearance  or  compromise  of  a  prosecution  for  bastardy,  can 
be  enforced :  Haven  v.  Hobbs,  1  Verm.  238  ;  Halcomb  v.  Stimpson,  8 
Ibid.  141 ;  Robinson  v.  Crenshaw,  2  Stew.  &  Port.  276 ;  Maurer  v. 
Mitchell,  9  W.  &  S.  71  ;  and  these  cases  proceed  upon  the  ground  of 
the  prosecutions  being  rather  civil  in  their  character. — r. 


194  smith's  law  of  contracts. 

Nor  will  a  Court  of  Equity  restrain  the  piracy  on  the 
I  application  of  the  author  or  publisher,  the  general  rule 
being,  that  equity  will  not  give  relief  of  this  kind  except 
[where  a  Court  of  Law  gives  damages.  (/)  And  where 
the  plaintiff,  a  printer,  having  agreed  to  print  for  the 
defendant  a  work  which  was  to  contain  a  dedication  to 
be  thereafter  sent  him,  printed  the  work  and  also  the 
dedication,  but  on  the  latter  being  returned  to  him  re- 
vised, discovered  for  the  first  time  that  it  contained 
libellous  matter,  whereupon  he  refused  to  continue  the 
p-iqK-i  printing  of  it :  it  was  held,  *that  the  dedication 
being  libellous,  the  plaintiff  was  justified  in  re- 
fusing to  publish  it,  and  was  entitled  to  recover  the 
expense  of  printing  the  body  of  the  work  from  the  de- 
fendant, who  had  refused  to  accept  or  pay  for  the  work 
without  the  dedication.  (^)  And,  more  recently,  where 
the  defendant  contracted  to  let  rooms  to  the  plaintiff, 
but  afterwards  discovering  that  they  were  intended  to 
be  used  for  the  delivery  of  lectures  of  a  blasphemous 
character,  refused  to  allow  the  use  of  the  rooms ;  it  was 
held,  that  he  was  justified  in  his  refusal,  as  the  contract 
was  illegal,  and  could  not  therefore  be  enforced  at 
law.  {h) 

The  greater  number  of  examples  of  the  application 
of  this  rule  afforded  by  the  books  is,  where  illicit  cohab- 
itation or  seduction  has  been  brought  forward  as  the 
consideration  of  the  contract.  These,  if  intended  to  be 
future,  are  illegal  considerations ;  (zy  if  already  past, 
they  are,  as  formerly  explained,  no  consideration  at 

(/)  Walcot  V.  Walker,  7  Ves.  1. 

[g]  Clay  v.  Yates,  25  L.  J.  (Ex.)  237  ;  1  H.  &  N.  73. 

\h)  Cowan  v.  Milbourn,  L.  R.,  2  Ex.  230  ;  36  L.  J.  (Ex.)  124. 

{i)  Walker  v.  Perkins,  3  Burr.  1568. 

1  Walker  v.  Gregory,  36  Ala.  180. 


ILLEGAL   CONTRACTS.  195 

all.(^)     Even  the  supiDlying  lodgings  or  clothing,  (/)  or 

a  carriaafe  to  *a  prostitute  for  the  purpose   of 

...  P1961 

enabling  her  to  carry  on  her  practices,  is  illegal,    '-        -• 

and  the  creditors  cannot  recover  the  price,  (w) 

Next,  with  regard  to  the  second  class — those,  namely, 

which  are  void  as  contravening  the  policy  of  the  law. 

It  might,  perhaps,  have  seemed  more  simple  to  have 

ranked  this  and  the  former  in  one  and  the  same  class, 

since  it  is  obvious,  that,  wherever  a  contract  has  an 

immoral  tendency,  there  it  is  opposed  to  the  policy  of 

the  law.     But  the  reason  for  dividing  them  into  two 

classes  is,  that  there  are  some'  contracts  which  involve 

no  offence  against  the  laws  of  morality,  and  nevertheless 

are  opposed  to  policy ;  such,  for  instance,  as  contracts 

m  general  restraint  of  trade,  and  which,  therefore,  are 

arranged  in  a  class  by  themselves. 

There  seems  to  be  nothing  obviously  immoral  in  a 

man's  promising  or  covenanting  not  to  carry  on  his 

trade  within  the  limits  of  England.     Nevertheless,  such 

a  covenant  or  promise  is  totally  void.    This  was  decided 

so  long  ago  as  in  the  reign  of  Henry  V. ;  in  the  Year 

Book  of  the  2d  year  of  which  reign,  fol.  5,  pi.  26,  a 

bond  restraining  a  weaver  from  exercising  his  trade  was 

held  void :  and  Judge  Hull  flew  into  such  a  passion 

at  the  sight  of  it,  that  he   swore  on  the  bench,  and 

threatened    to    send    the    obligee    to    prison    till    he 

had    paid    a    fine   to    the    King;    upon   which    Lord 

(^•)  Bridges  v.  Fisher,  23  L.  J.  (Q.  B.J  276  ;  3  E.  &  B.  (77  E.  C.  L.  R.) 
642 ;  Beaumont  v.  Reeves,  8  Q.  B.  (55  E.  C.  L.  R.)  483. 

{I)  Girardy  v.  Richardson,  1  Esp.  13;  Jennings  v.  Throgmorton,  R. 
&  M.  (21  E.  C.  L.  R.)  251  ;  Bowry  v.  Bennet,  1  Camp.  348.  See  Feret  v. 
Hill,  23  L.  J.  (C.  P.)  185  ;  15  C.  B.  (SO  E.  C.  L.  R.)  207.  'See  also  Smith 
V.  White,  L.  R.  1  Eq.  626  ;  35  L.  J.  (Ch.)  454  ;  Taylor  v.  Chester,  L.  R. 
4  Q.  B.  309;  38  L.  J.  (Q.  B.)  225. 

[m]  Pearce  v.  Brookes,  35  L.  J.  (Ex.)  134  ;  L.  R.  1  Ex.  213. 


197  smith's  law  of  contracts. 

r*1971  ^Macclesfield  observes,  in  Mitchell  v.  Rey- 
nolds, (jz)  "that  he  could  not  but  approve  of 
the  indignation  the  judge  expressed,  though-  not  his 
manner  of  expressing  it,"  Accordingly,  such  contracts 
were  declared  to  be  void  in  that  case,  and  have  ever 
since  been  held  void. 

"  The  law,"  said  Best,  C.  J.,  in  Homer  v.  Ashford,(o) 
"  will  not  allow  or  permit  any  one  to  restrain  a  person 
from  doing  what  his  own  interest  and  the  public  welfare 
require  that  he  should  do.  Any  deed,  therefore,  by 
which  a  person  binds  himself  not  to  employ  his  talents, 
his  industry,  or  his  capital,  in  any  useful  undertaking  in 
the  kingdom,  would  be  void." 

But  here  arises  a  distinction,  which  was  first  illus- 
trated by  Lord  Macclesfield,  in  the  celebrated  case  of 
Mitchell  V.  Reynolds,  before  mentioned,  which  has  ever 
since  been  upheld.  It  is,  that  though  a  contract  in  gen- 
eral restraint  of  trade  is  void,  one  in  partial  restraint  of 
trade  may  be  upheld  ;  provided  the  restraint  bje  .reason- 
able, and  provided  the  contract  be  Founded  upon  a  con^~ 
sideration.  "It  may  often  happen,"  continued  Lord 
Wynford  (then  Chief  Justice  Best),  at  the  place  which 
I  have  just  cited,  "  that  individual  interest  and  general 
convenience  render  engagements  not  to  carry  on  trade 
or  act  in  a  profession  at  a  particular  place,  proper." 
r*1  Q91  "  Contracts  for  the  partial  restraint  *of  trade  are 
upheld,"  said  the  Court  of  Exchequer  in  Mallan 
V.  May,(^)  "not  because  they  are  advantageous  to  the 
individual  with  whom  the  contract  is  made,  and  a  sacri- 
fice pro  tanto  of  the  rights  of  the  community,  but  because 

{n)  1  P.  Wms.  181  ;  1  Smith's  L.  C.  356,  6th  ed.  ;  Gunmakers'  Com- 
pany V.  Fell,  Willes  384. 

(o)  3  Bing.  (11  E.  C.  L.  R.)  322,  326. 
(p)  11  M.^&  W.  653. 


ILLEGAL   CONTRACTS.  198 

it  is  for  the  benefit  of  the  public  at  large  that  they  should 
be  enforced.  Many  of  these  partial  restraints  on  trade 
are  perfectly  consistent  with  public  convenience  and  the 
general  interest,  and  have  been  supported:  such  is  the 
case  of  the  disposing  of  a  shop  in  a  particular  place, 
with  a  contract  on  the  part  of  the  vendor  not  to  carry  on 
a  trade  in  the  same  place.  It  is  in  effect  the  sale  of  a 
good-will,  and  offers  an  encouragement  to  trade,  by 
allowing  a  party  to  dispose  of  all  the  fruits  of  his  indus- 
try. (§')  And  such  is  the  class  of  cases  of  much  more 
frequent  occurrence,  and  to  which  this  present  case 
belongs,  of  a  tradesman,  manufacturer,  or  professional 
man  taking  a  servant  or  clerk  into  his  service,  with  a 
contract  that  he  will  not  carry  on  the  same  trade  or  pro- 
fession within  certain  limits,  (r)  In  such  a  case  the 
public  derives  an  advantage  in  the  unrestrained  choice 
which  such  stipulation  gives  to  the  employer  of  able 
assistants,  and  the  security  it  affords  that  the  master 
will  not  withhold  from  the  servant  instruction  in  the 
secrets  of  his  trade,  and  the  communication  of  his  own 
*skill  and  experience,  from  the  fear  of  his  pH-inq-i 
afterwards  having  a  rival  in  the  same  business. 
But  it  must  always  be  borne  in  mind,  "  that  contracts 
in  restraint  of  trade  are  in  themselves,  if  nothing  more 
appears  to  show  them  reasonable,  bad  in  the  eye  of  the 
law."  (,9)^ 

{q)  Pruifnell  v.  Grosse,  Alleyne  67  ;  Broad  v.  .Jollyffe,  Cro.  Jac.  596  ; 
Jelliott  V.  Broad,  Noy  98. 

(r)  Ohesinan  v.  Nainby,  2  Ld.  Raym.  1456  ;  2  Stra.  739. 

(,<?)  Tindal,  C.  J.,  Horner  v.  Graves,  7  Bing.  (20  E.  C.  L.  R.)  744. 
But  see  Tallis  t\  Tallis,  22  L.  J.  (Q.  B.)  185. 

1  Warner  v.  Jones,  51  Me.  146  ;  Clark  v.  Crosby,  37  Verm.  188  ;  Hard 
V.  Seeley,  47  Barb.  428  ;  M'Clurg's  Appeal,  58  Penn.  St.  51  ;  Jenkins 
V.  Temples,  39  Ga.  655 ;  Treat  v.  Shoniger  Melodeon  Co.,  35  Conn.  543; 
Gillis  V.   Hall,  2  Brewst.   342;  Crawford  v.  Wick,   18  Ohio    St.    190: 


199  smith's  law  of  contracts. 

Examples  of  what  are  considered  partial  restraints  of 
trade  are  numerous  in  the  books;  they  are  usually  par- 
tial in  respect  of  time,  as  not  to  exercise  it  for  a  speci- 
fied period;  or  in  respect  of  space,  as  not  to  trade  within 
a  given  district;  and  a  restraint  limited  as  to  space  may 
be  unlimited  as  to  time  and  yet  good.(^)  In  Gale  v. 
Reed,(w)  the  contract  was  for  one  party  not  to  trade 
with  a  certain  class  of  persons  in  the  mode  specified, 
provided  the  other  party  traded  with  them  therein.  The 
defendant  covenanted  not  to  exercise  the  business  of  a 
ropemaker  during  his  life,  except  on  Government  con- 
tracts, and  to  employ  the  plaintiffs  exclusively  to  make 
all  the  cordage  which  should  be  ordered  of  him  by  his 
connection.  The  plaintiffs  were  to  allow  him  2^.  per 
cwt.  on  the  cordage  made  by  them  for  such  of  his  con- 
nection whose  debts  should  turn  out  to  be  good,  but  were 
not  to  be  compelled  to  furnish  goods  to  any  r:5:9AA-| 
whom  they  were  *not  willing  to  trust.  The 
Court  considered  that  the  defendant  was  not  prevented 
from  supplying  those  of  his  connection  whom  the  plain- 
tiffs rejected,  and  consequently  that  the  restraint  to 
follow  his  trade  was  partial  only.  Such  restraints  were 
upheld  in  the  case  of  Chesman  v.  Nainby,  decided  in  the 
House  of  Lords  upon  writ  of  error,  (^')  in  which  the 
agreement  was,  not  to  carry  on  the  trade  of  a  linen- 
draper  within  half  a  mile  of  the  place  where  the  party 

[t)  Catt  V.  Tourle,   L.   R.  4  Ch.  654,  33  L.  J.  (Ch.)  665;  Elves  v 
Crofts,  10  C.  B.  (70  E.  C.  L.  R.)  241,  cited  _po^  p.  205. 
{u)  8  East  80. 
\v)  2  Str.  739  ;  3  Bro.  P.  C.  349. 

Guvand  v.  Dandelet,  32  Md.  561  ;  Warfield  w.  Booth,  33  Ibid.  63  ;  Dean 
V.  Emerson,  102  Mass.  480  ;  More  v.  Bonnet,  40  Cal.  251  ;  Perkins  v. 
Clay,  54  N.  11.  518  •,  Nougland  v.  Segur,  38  N.  J.  (Law)  230;  Dwight 
V.  Hamilton,  113  Mass.  175  ;  Brown  v.  Rounsavell,  78  111.  589  ;  Roller 
V.  Ott,  14  Kan.  609  ;  Peltz  v.  Eichelle,  62  Mo.  171. 


ILLEGAL    CONTRACTS.  200 

was  to  serve  as  assistant;  in  that  of  Bimn  v.  Gny,{tv) 
■where  the  agreement  was,  that  one  attorney  in  London 
selling  his  business  to  others  should  not  practice  as  an 
attorney  within  London,  or  150  miles  thereof;  and  in 
that  of  Proctor  v.  Sargent,  (:i;)  where  the  servant  of  a 
cowkeeper  in  London  engaged  not  to  carry  on  the  same 
trade  as  his  master  within  five  miles  for  twenty-four 
months  'after  the  determination  of  his  service.  Indeed 
nothing,  as  you  must  be  well  aware,  can  be  more  common 
upon  a  dissolution  of  partnership,  than  for  the  retiring 
partner  to  covenant  that  he  will  not  set  up  the  same 
trade  within  a  certain  distance  to  the  injury  of  the  con- 
tinuing partner.  But  these  restraints  must,  in  order  to 
be  upheld,  be  reasonable;  that  is,  a  greater  restriction 
must  not  be  ^wantonly  imposed  than  can  be  rH:9m"i 
necessary  for  the  protection  intended. 

In  Horner  v.  Graves, (^)  100  miles  from  the  place 
where  a  dentist  carried  on  business  was  considered  an 
unreasonable  space  from  which  to  exclude  an  assistant 
and  pupil  from  practising  the  same  profession  after  his 
service  was  determined  and  his  instruction  completed. 
"We  do  not  see,"  said  Tindal,  C.  J.,  in  delivering  the 
judgment  of  the  Court  of  Common  Pleas,  "how  a  better 
test  can  be  applied  to  the  question,  whether  reasonable 
or  not,  than  by  considering  whether  the  restraint  is  such 
only  as  to  afford  a  fan*  protection  to  the  interests  of  the 
party  in  favor  of  whom  it  is  given,  and  not  so  large  as 
to  interfere  with  the  interests  of  the  public.  Whatever 
restraint  is  larger  than  the  necessary  protection  of  the 

(tv)  4  East  190  ;  Whittaker  v.  Howe,  3  Beav.  383  ;  Dendy  v.  Hender- 
son, 24  L.  J.  (Ex.)  324  ;  Nicholls  v.  Stretton,  10  Q.  B.  (59  E.  C.  L.  R.) 
340. 

[x]  2  M.  &  Gr.  (40  E.  C.  L.  R.)  20  ;  Benwell  v.  Inns,  24  L.  J.  (Ch.) 
663. 

(.y)  7  Bing.  (20  E.  C.  L.  R.)  735. 
15 


201  smith's  law  of  contracts. 

party  can  be  of  no  benefit  to  either;  it  can  only  be 
oppressive,  and,  if  oppressive,  it  is  in  the  eye  of  the 
law  unreasonable.  Whatever  is  injurious  to  the  interests 
of  the  public,  is  void,  on  the  grounds  of  public  policy. 
In  the  case  above  referred  to  (Mitchell  v.  Reynolds,  (^) ) 
Lord  Chief  Justice  Parker  says,  "A  restraint  to  carry 
on  a  trade  throughout  the  kingdom  must  be  void;  a 
restraint  to  carry  it  on  in  a  particular  place  is'  good ;" 
which  are  rather  instances  or  examples  than  limits  of 
r*9n91  ^^  application  *of  the  rule,  which  can  only  be 
at  last  what  is  a  reasonable  restraint  with  refer- 
ence to  the  particular  case.  In  that  case  the  plaintiff 
had  assigned  to  the  defendant  the  lease  of  a  house  in 
the  parish  of  A.  for  five  years,  and  the  defendant 
entered  into  a  bond  conditioned  that  he  would  not  exer- 
cise the  trade  of  a  baker  within  that  parish  during  that 
term ;  and  the  restraint  was  held  good,  because  not  un- 
reasonable either  as  to  the  time  or  distance,  and  not 
larger  than  might  be  necessary  for  the  protection  of  the 
plaintiff  in  his  established  trade.  No  certain  precise 
boundary  can  be  laid  down  within  which  the  restraint 
would  be  reasonable,  and  beyond  which,  excessive.  In 
Davis  V.  Mason,  («)  where  a  surgeon  had  restrained  him- 
self not  to  practice  within  ten  miles  of  the  plaintiff's 
residence,  the  restraint  was  held  reasonable.  In  one 
of  the  cases  referred  to  by  the  plaintiff,  150  miles  was 
considered  as  not  an  unreasonable  restraint,  where  an 
attorney  had  bought  the  business  of  another  who  had 
retired  from  the  profession.  But  it  is  obvious  that  the 
profession  of  an  attorney  requires  a  limit  of  a  much 
larger  range,  as  so  much  may  be  carried  on  by  corre- 

(z)  1  p.  Wms.  181,  1  Smith's  L.  C.    This  case,  with  Mr.  Smith's  note 
thereon,  should  be  carefully  studied, 
(a)  5  T.  R.  118. 


ILLEGAL    CONTRACTS.  202 

spondence,  or  by  agents.  And  unless  the  case  was  such 
that  the  restraint  was  plainly  and  obviously  unneces- 
sary, the  Court  would  not  feel  itself  justified  in  inter- 
fering. It  is  to  be  remembered,  however,  *that  r:;=9no-| 
contracts  in  restraint  of  trade  are  in  themselves, 
if  nothing  more  appears  to  show  them  reasonable,  bad 
in  the  eye  of -the  law;  and  upon  the  bare  inspection  of 
this  deed,  it  must  strike  the  mind  of  every  man  that  a 
circle  round  York,  traced  with  the  distance  of  one  hun- 
dred miles,  incloses  a  much  larger  space  than  can  be 
necessary  for  the  plaintiff's  protection."  A  fortiori, 
where  the  plaintiff,  a  coal  'merchant  in  London,  had 
taken  the  defendant  into  his  service  as  town  traveller 
and  collecting  clerk,  and  the  defendant  agreed  that  he 
would  not,  within  two  years  after  leaving  the  plaintiff's 
service,  solicit  or  sell  to  any  customer  of  the  plaintiflf, 
and  would  not  follow  or  be  employed  in  the  business  of 
a  coal  merchant  for  nine  months  after  he  should  have 
left  the  employment  of  the  plaintiff,  the  contract  was 
decided  to  be  void,  as  a  restraint  of  a  trade  unlimited 
in  point  of  space." (^)  "I  cannot  express,"  said  Parke, 
B.,  in  this  case,  "the  rule  on  this  subject  better  than 
has  been  done  by  Tindal,  C.  J.,  in  giving  the  judgment 
of  the  Court  of  Exchequer  Chamber  in  Hitchcock  v. 
Coker,(c)  where  he  says:  "We  agree  in  the  general 
principle  adopted  by  the  Court  of  Queen's  Bench,  that, 
where  the  restraint  of  a  party  from  carrying  on  a  trade 
is  larger  and  wider  than  the  protection  of  the  party  with  \ 
whom  the  *contract  is  made  can  possibly  require,  pt; <  m -i  v  "J 
such  restraint  must  be  considered  as  unreason-  V 

able  in  law,  and  the  contract  that  would  enforce  it  must 

(h)  Ward  v.  Byrne,  5  M.  &  W.  548,  561  ;  and  see  Allsopp  v.  Wheat-" 
croft,  L.  R.  15  Eq.  59  ;  42  L.  J.  (Ch.)  12. 
(c)  6  A.  &  E.  (33  E.  C.  L.  R.)  453. 


204 


SMITH  S    LAW   OF    CONTRACTS. 


be  therefore  void."  Now  a  restraint  prohibiting  a  party 
from  carrying  on  trade  within  certain  limits  of  space 
would  be  good,  and  a  contract  entered  into  for  the  pur- 
pose of  enforcing  such  an  agreement  as  that  would  be 
valid ;  and  the  limit  of  the  space  is  that  which,  accord- 
ing to  the  trade  he  carries  on,  is  necessary  for  the  pro- 
tection of  the  party  with  whom  the  contract  is  made." 
The  cases  upon  this  branch  of  the  subject  are  reviewed 
by  the  Court  of  Exchequer  in  the  great  case  of  Mallan 
V.  May,  before  mentioned ;  and  it  may  be  convenient  to 
the  student  to  subjoin  the  brief  observations  made  upon 
them  by  that  Court  in  giving  judgment : — {d) 

"Applying  this  rule  and  referring  to  the  analogous 
authorities,  it  appears  to  us,  that,  for  such  a  profession 
as  that  of  a  dentist,  the  limit  of  London  is  not  too  large. 
In  Davis  v.  Mason,  (e)  Thetford  and  ten  miles  round,  in 
Hay  ward  v.  YoUng,(/)  twenty  miles  round  a  place, 
were  held  reasonable  limits  in  the  case  of  a  surgeon;  in 
that  of  an  attorney,  London  and  one  hundred  and  fifty 
miles  round,  in  Bunn  v.  Guy;(^)  and  in  Proctor  v.  Sar- 
p!=9n''1  S^^^^'i^O  ^^^  miles  from  Northampton  Square, 
'4n  the  county  of  Middlesex,  was  held  reason- 
able in  the  case  of  a  milkman.  And  it  makes  no  dif- 
ference, in  our  opinion,  that  it  appears  on  the  face  of 
this  record  that  London  contains  a  million  of  inhabitants. 
We  doubt,  indeed,  whether  the  comparative  populous- 
ness  of  particular  districts  ought  to  enter  into  conside- 
ration at  all;  if  it  did,  it  would  be  difficult  to  exclude 
others,  such  as  the  number  of  men  of  the  same  profes- 

{d)  11  M.  &  W.  667  (e)  5  T.  R.  118. 

(/)  2  Chit.  407  ;  Atkyns  v.  Kinnier,  4  Ex.  776  ;  Sainter  v.  Ferguson, 
7  C.  B.  (62E.C.L.  R.)  716. 

[g)  4  East  190. 

{h)  2  M.  &  Gr.  (40  E.  C.  L.  R.)  20  ;  Pemberton  v.  Vaughan,  10  Q.  B. 
(59  E.  C.  L.  R.)  87. 


ILLEGAL    CONTRACTS.  205 

sion,  the  habits  of  the  people  in  that  neighborhood,  and 
other  matters  of  a  fluctuating  and  uncertain  character, 
which  would  produce  great  difficulty  and  embarrassment 
in  determining  such  a  question."  Yet  the  Court  will 
take  into  consideration  the  circumstances  at  the  time  of 
the  execution  of  the  bond  and  the  nature  of  the  busi- 
ness, the  good-will  of  which  was  sold.(/) 

Upon  this  principle  a  covenant  not  at  any  time  to 
carry  on  tha  business  of  a  butcher  within  five  miles  of 
the  place  where  the  covenantor  carried  it  on,  before  his 
sale  of  the  business  to  the  covenantee,  has  been  sup- 
ported as  not  unreasonable  either  in  respect  of  time  or 
distance,  (/t)  And  in  Tallis  v.  TaUis,(/)  the  Court  of 
Queen's  Bench  declared,  *that  any  covenant  is  r:::9Aa-| 
valid  unless  it  plainly  appear  that  a  restriction 
is  imposed  by  it  beyond  what  the  interest  of  the  cove- 
nantee requires. 

The  proposition  that  a, covenant  or  promise  not  to 
carry  on  a  trade  within  the  limits  of  England  is  totally 
void,(m)  seems  somewhat  qualified  in  the  recent  case  of 
Leather  Cloth  Company  v.  Lorsont.(?^)  There  a  com- 
pany was  formed  for  the  purchase  and  working  of  certain 
patents  and  processes  for  the  manufacture  of  American 
leather  cloth ;  and  the  agreement  for  the  purchase  con- 
tained a  provision,  that  the  vendors  "  will  not  directly 
or  indirectly  carry  on,  nor  will  they,  to  the  best  of  their 
power,  allow  to  be  carried  on  by  others,  in  any  part  of 
Europe,  any   company  or  manufactory  having  for  its 

{i)  Avery  v.  Langford,  23  L.J.  (Ch.)  837;  Harms  v.  Parsons,  32 
Beav.  328  ;  32  L.  J.  (Ch.)  247. 

[k)  Elves  V.  Crofts,  10  C.  B.  (70  E.  C.  L.  R.)  241. 

{I)  1  E.  &  B.  (72  E.  C.  L.  R.)  391  ;  s.  c.  22  L.  J.  (.Q.  B.)  185.  See 
Mumford  v.  Gething,  7  C.  B.  N.  S.  (97  E.  C.  L.  R.)  305  ;  29  L.  J. 
(C.  P.)  105. 

{m)  Ante,  p.  196.  • 

[n)  L.  R.  9  Eq.  345 ;  39  L.  J.  (Ch.)  86. 


206  smith's  law  of  contracts. 

object  the  manufacture  or  sale  of  productions  now  manu- 
factured in  the  business  or  manufactory"  (of  the  ven- 
dors), "and  will  not  communicate  to  any  person  or 
persons  the  means  or  processes  of  such  manufacture,  so 
as  in  any  way  to  interfere  with  the  exclusive  enjoyment 
by  the  purchasing  company  of  the  benefits  hereby  agreed 
to  be  purchased."  James,  V.  C,  held,  that  the  restric- 
tion contained  in  this  clause  was  not  greater,  having 
regard  to  the  subject-matter  of  the  contract,  than  was 
necessary  for  the  protection  of  the  purchasers.  His 
r*'?!!?!  Honor,  however,  went  on  *the  ground  that  the 
case  much  more  resembled  "the  sale  of  a  secret, 
which  has  been  held  to  be  perfectly  good,  with  a  stipu- 
lation unlimited  as  to  time  and  place  as  to  communi- 
cating the  secret,  or  dealing  with  it  so  as  to  interfere 
with  the  purchaser.  It  is  settled  by  authority  that  a 
man  may  bind  himself  not  to  communicate  that  process 
to  anybody  else  anywhere,  under  any  circumstances,  in 
any  part  of  the  world  ."(o) 

It  may  be  mentioned  here  that  where  one  covenants 
with  another  not  to  carry  on  business  within  a  given 
distance  of  that  other's  house,  this  distance  is  to  be  cal- 
culated, popularly  speaking,  "  as  the  crow  flies,"  more 
accurately,  by  drawing  a  circle  on  a  map,  the  radius  of 
which  is  the  given  distance  measured  on  the  map.  And 
where  the  question  is  whether  the  covenant  is  broken 
by  the  too  great  proximity  of  one  house  to  another, 
then,  in  measuring  the  distance,  it  should  be  taken  from 
the  nearest  point  of  the  one  house  to  the  nearest  point 
of  the  other,  without  regard  to  where  the  doors  are 
situated,  (jt?) 

(o)  L.  R.  9  Eq.  354. 

[p)  Mouflet  V.  Cole,  L.  R.  8  Ex.  32  (Ex.  Ch.),  s.  c.  42,  L.  J.  (Ex.)  8, 
affirming  L.  R.  7  Ex.  70 ;  s.  c.  41  L.  J.  (Ex.)  28  •,  Duignan  v.  Walker, 
■Johns.  446  ;  28  L.  J.  (Ch.)  867. 


ILLEGAL   CONTRACTS.  207 

Further,  contracts  in  restraint  of  trade  must,  in  order 
to  be  good,  be  founded  on  a  consideration,  even  although 
they  be  made  by  deed.  "  Where  one  agrees,"  said  Lord 
Lyndhurst  in  a  remarkable  *case,  which  is  well  ^...,-,^^-1 
worthy  of  attention, (5')  "with  another  to  em-  '-  ""  -' 
ploy  him,  and  the  latter  agrees  not  to  work  for  any 
third  person,  such  agreement  is  a  partial  restraint  of' 
trade,  and  must  be  supported  by  adequate  consider- 
ation." Thus,  in  the  case  of  Hutton  v.  Parker,  (r)  it 
was  held  most  clearly  by  the  Court  of  Queen's  Bench, 
that  in  an  action  on  a  bond  given  by  the  defendant  not 
to  enter  into  the  service  of  any  other  than  the  plaintiff 
within  ten  miles  of  the  town  of  Sheffield,  some  consider- 
ation must  be  shown  on  the  declaration,  in  order  to  make 
it  good ;  and  the  Court  refused  to  presume  one.  But 
where  an  artisan  agreed  with  manufacturers  to  serve  for 
seven  years,  and  not  work  for  any  other  without  leave  ; 
that  in  times  of  depression  of  trade  he  should  be  paid 
part  only  of  his  wages,  but  if  ill,  another  was  to  be  em- 
ploj^ed  in  his  room ;  and  that  they  should  pay  him  wages 
and  house  rent,  but  be  at  liberty  to  dismiss  him  on  a 
month's  notice ;  the  Court,  thinking  that  the  manufac- 
turers were  bound  to  employ  him  for  seven  years,  sub- 
ject to  their  power  of  dismissal,  held  that  there  was  a 
good  consideration  for  the  artisan's  promise  to  serve 
them  exclusively.  (5)^ 

{q)  Youiii:  V.  Tiramins,  1  C.  &  J.  339. 
[r]  7  Dowl.  739. 

(s)  Pilkington  v.  Scott,  15  M.  &  W.  657 ;  Sainter  v.  Ferguson,  7  C.  B. 
(62  E.  C.  L.  R.)  716.     See  1  Smith's  L.  C,  6th  ed.,  372,  373. 

^  See  the  note  to  Mitchell  v.  Reynolds,  in  1  Smith's  Lead.  Cas.  430. 
In  this  countrj',  the  general  principle  that  contracts  in  restraint  of 
trade,  so  far  as  they  may  prevent  the  exercise  of  a  particular  calling, 
are  void,  has  been  frequently  i-ecognizcd  and  enforced,  as,  for  example, 

Alger 


208  smith's  law  of  contracts. 

It  was  at  one  time  thought  that  the  Courts  would 
enter  mto  the  question  of  the  adequacy  of  '-'this 
consideration,  and  would  hold  the  contract  void 

V.  Thatcher,  19  Pick.  51  ;  manufacturing  chocolate:  Vickery  v.  Welch, 
Ibid.  523  ;  wool-carding  :  Pyke  v.  Thomas,  4  Bibb  4S6,  and  the  like  ; 
while  the  exception  has  been  equally  established  of  sanctioning  such 
contracts  where  the  restraint  applies  only  to  a  particular  locality  : 
Pierce  v.  Fuller,  8  Mass.  223  ;  Pierce  v.  Woodward,  6  Pick.  206  ;  Noble 
V.  Bates,  7  Cow.  307  ;  Palmer  v.  Graham,  1  Parsons'  Eq.  476.  It  is 
stated  in  the  text  that  the  later  English  cases  show  an  unwillingness  to 
enter  into  the  question  of  adequacy  of  consideration,  and  a  strong  in- 
stance of  this  may  be  seen  in  the  very  recent  cases  of  Atkyns  v.  Kinnier, 
4  Exch.  776,  where  the  defendant  bound  himself  in  the  sum  of  £1000, 
as  liquidated  damages,  not  to  practice  as  a  physician  within  two  miles 
and  a  half  of  a  certain  place.  He  did  practice  a  few  feet  within  that 
distance,  measuring  by  a  less  frequented  road  than  the  usual  thorough- 
fare, though  by  the  latter  he  was  beyond  that  distance,  and  there  was 
no  evidence  that  the  plaintiff  had  sustained  any  damage  from  his  having 
done  so.  The  jury  having,  under  the  direction  of  the  Court,  found  a 
verdict  for  £1000,  the  Court  of  Exchequer  discharged  a  rule  to  reduce 
the  damages  to  a  shilling,  and  held  that  the  defendant  must  abide  by 
the  contract  he  had  made.  But  in  New  York,  it  has  been  held  that, 
prima  facie,  the  law  presumes  even  limited  restraints  on  trade  to 
be  void,  and  they  will  only  be  upheld  upon  sufficient  proof  of  their 
reasonableness,  both  as  to  consideration  and  usefulness :  Chapel  v. 
Brockway,  21  Wend.  158  ;  Ross  v.  Sadgbeer,  Ibid.  166.  In  the  latter 
case,  to  a  declaration  on  a  bond  conditioned  that  the  defendant  should 
not  manufacture  pearl  ash  for  ten  years,  nor  within  forty  miles  of  a  cer- 
,tain  place,  a  general  demurrer  was  sustained  by  the  Court,  on  the 
ground  that  the  consideration  imported  by  the  seal  did  not  afford  a  pre- 
sumption of  such  circumstances  and  reasons  as  were  requisite  to  uphold 
such  a  contract.  Prior  and  subsequent  decisions  in  that  State  have  not, 
however,  observed  such  a  rule,  and  an  agreement  not  to  practice  as  a 
physician  within  six  miles  or  pay  $500  for  every  month  of  such  practice: 
Smith  V.  Smith,  4  Wend.  468  ;  and  an  agreement  not  to  set  up  a  rival 
newspaper,  or  pay  |3000:  Dakin  v.  Williams,  17  Wend.,  22  Ibid.  201, 
were  respectively  enforced,  and  the  sums  named  held  to  be  liquidated 
dramages,  and  not  a  penalty. — r. 

A  contract  in  general  restraint  of  trade  is  void  ;  but  if  in  partial  re- 
straint of  trade  only,  it  may  be  supported,  provided  the  restraint  be  rea-' 
sonable,  and  the  contract  be  founded  on  consideration :  Holmes  v. 
Martin,  10  Ga.  503  ;  Bowser  v.  Bliss,  7  Blackf.  344  ;  Butler  v.  Burleson, 
16  Verm.  176;  Webb  u.  Noah,  1  Edw.  Ch.  604;  Alger  v.  Thacher,  19 


ILLEGAL   CONTRACTS.  209 

if  the  consideration  were  inadequate.  However,  it  has 
been  decided  in  the  Exchequer  Chamber,  after  great 
consideration,  that  the  question  of  adequacy  or  inade- 
quacy cannot  be  entertained,  but  that  the  parties  must 
judge  of  that  for  themselves  ;p)  a  doctrine  you  may 
remember  my  citing  as  a  strong  instance  of  the  unwill- 
ingness of  the  courts  to  enter  into  the  question  of  the 
adequacy  of  consideration  at  all.  {ii)  The  reason  of  this 
last  rule  is  very  succinctly  expressed  by  Alderson,  B.. 
in  Pilkington  v.  Scott,  above  referred  to :  "  Before  the 
decision  in  Hitchcock  v.  Coker,"  he  says,  "a  notion  pre- 
vailed, that  the  consideration  must  be  adequate  to  the 
restraint ;  that  was,  in  truth,  the  law  making  the  bar- 
gain, instead  of  leaving  the  parties  to  make  it,  and  see- 
ing only  that  it  is  a  reasonable  and  joroper  bargain." 

Although  the  examples  here  given,  and  indeed  by  far 
the  greater  number  of  instances  of  contracts  in  restraint 
of  trade,  have  been  instances  of  restraint  in  time  or 
place,  the  restraint  which  the  law  forbids  within  the 
limits  before  mentioned,  is  not  confined  to  restraints  in 
time  or  place.  Thus,  in  one  of  the  cases  on  the  sub- 
ject, a  covenant  by  a  licensee  of  a  patent  for  a  term  of 
years  not  to  make  or  vend  during  the  residue  of  the 
term,  *any  machines  for  effectuating  the  same  v^^^-\  q-i 
thing  as  the  patent  was  obtained  for,  without 

(0  Hitchcock  V.  Coker,  6  A.  &  E.  (33  E.  C.  L.  R.)  438  :  Archer  v. 
Marsh,  Ibid.  966  ;  Price  v.  Green,  13  M.  &  W.  698  ;  per  Parke,  B. 
(?<)  Ante^  p.  161,  et  seq^. 

Pick.  61.  An  agi'eement  between  two  persons  for  the  manufacture  and 
sale  of  a  certain  patented  article,  which  provides  for  the  continuance  of 
the  manufacture  by  one  of  them,  and  that  the  other  after  a  certain  time 
shall  abstain  therefrom,  is  not  an  agreement  in  restraint  of  trade  :  Kins- 
man V.  Parkhurst,  18  How,  (S.  C.)  289  ;  and  see  Whitney  v.  Slayton, 
40  Me.  224  ;  Van  Marter  v.  Babcock,  23  Barb.  633  ;  Alcock  v.  Giberton, 
5  Duer  76  ;  Heichen  v.  Hamilton,  3  Iowa  596  ;  Beard  v.  Dennis,  6  Ind. 
200;  California  Steam  Co.  v.  Wright,  6  Cal.  258  ;  Dufly  v.  Shockey,  11 
Ind.  70. 


210  smith's  law  of  contracts. 

having  the  patented  invention  applied  to  those  machines, 
was  considered,  and  held  not  void.(^') 

Another  example  of  contracts,  illegal  because  in  con- 
travention of  the  policy  of  the  law,  is  afforded  by  those 
eases  in  which  contracts  in  general  restraint  of  marriage 
have  been  held  yo\d.{iu)  Thus,  in  Lowe  v.  Veers, (x) 
a  defendant  entered  into  the  following  covenant: — "I 
do  hereby  promise  Mrs.  Catherine  Lowe  that  I  will  not 
marry  any  person  besides  herself.  If  I  do,  I  agree  to 
pay  her  £1000  within  three  months  after  I  shall  marry 
anybody  else."  The  Court  of  King's  Bench  held  this 
contract  void,  remarking,  "that  it  was  not  a  promise  to 
marry  her,  but  not  to  marry  any  one  else,  and  yet  she 
was  under  no  obligation  to  marry  him."  This  case  was 
affirmed  in  error.  (^) 

So,  where  a  lady  gave  a  bond  conditioned  not  to 
marry,  the  Court  of  Chancery  ordered  it  to  be  delivered 
up.(0) 

On  the  subject  of  marriage  I  may  further  mention, 
that  a  deed  tending  to  the  future  separation  of  husband 
^  and  wife  is  void  on  grounds  of  public  *policy ;  («) 
-  although  a  deed  providing  a  fund  for  the  lady's 
support  on  the  occasion  of  an  immediate  separation  is 
not  so.(b)  And  the  Court  of  Chancery  will  exercise 
its  jurisdiction  in  giving  effect  to  arrangements  of  pro- 
perty contained  in  articles  of  separation,  such  separa- 

{v)  Jones  V.  Lees,  26  L.  J.   (Ex.)  9  ;  1  H.  &  N.  189.     See  Hilton  v., 
Eckersley,  24  L.  J.  (Q.  B.)  353  ;  25  L.  J.  (Q.  B.)  199,  in  Ex.  Ch.  ;  6  E, 
&  B.  (88  E.  C.  L.  R.)  47. 

{w)  See  Newton  v.  Marsden,  31  L.  .J.  (Ch.)  690. 

(x)  4  Burr.  2225.  {y)  4  Burr.  2234. 

(z)  Baker  v.  White,  2  Vern.  215. 

{a)  Hindley  v.  Marquis  of  Westmeath,  6  B.  &  C.  (13  E.  C.  L.  R.) 
200. 

(&)  .Jee  V.  Thurlow,  2  B.  &  C.  (9  E.  C.  L.  R.)  547  ;  Jones  v.  Waite,  in 
Dom.  Proc.  4  M.  &  Gr.  (43  E.  C.  L.  R.)  1104. 


ILLEGAL    CONTRACTS.  211 

tion  having  previously  taken  place,  {c)  and  will  restrain 
the  husband  from  doing  any  act  contrary  to  his  cove- 
nant in  such  articles  not  to  molest  his  wife,  (cl)  And  even 
where  the  parties,  after  executing  a  lawful  deed  of 
separation,  have  been  reconciled  and  have  cohabited, 
the  deed  is  not  necessarily  annulled  thereby; (^)  but  a 
Court  of  Equity  will  compel  performance  of  covenants 
therein,  if  it  appear  that  such  reconciliation  was  not 
intended  to  annul  them.(/)  The  distinction  between 
the  two  cases  of  future  and  existing  separation  is  obvious. 
The  deed,  in  the  former  case,  contemplates  and  facili- 
tates that  which  the  law  considers  an  evil — namely,  the 
separation  of  husband  and  wife;  in  the  latter  case,  the 
evil  is  inevitable,  and  the  effect  of  the  deed  is  but  to 
save  the  wife  from  destitution. 

*Almost  the  Converse  of  these  cases  of  deeds  n-^^cf^  ^-i 
of  separation  are  what  are  called  Marriage  hro- 
cage  contracts,  that  is,  where  a  man  has  agreed,  in  con- 
sideration of  money,  to  bring  about  a  marriage.  These 
are  all  void  as  against  public  policy,  the  law  considering 
that  unions  so  brought  about  are  unlikely  to  be  happy 
ones.  This  class  of  cases  is  founded  upon  a  case  in  the 
House  of  Peers, (^)^  in  which  Thomas  Thinne  gave  an 

(c)  Wilson  V.  Wilson,  1  H.  L.  Cas.  538  ;  Gibbs  v.  Harding,  L.  R.  8 
Eq.  490,  5  Ch.  336;  s.  c,  38  L.  J.  (Ch.)  604,  39  Ibid.  374. 

{d)  Sanders  v.  Rodway,  22  L.  J.  (Ch.)  230. 

(e)  Wilson  v.  Mushett,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  743;  Randle  v. 
Gould,  27  L.  J.  (Q.  B.)  57  ;  8  E.  &  B.  (92  E.  C.  L.  R.)  457. 

(/)  Webster  v.  Webster,  22  L.  J.  (Ch.)  837. 

[g)  Hall  V.  Potter,  3  Lev.  411. 

^  Hall  V.  Potter  (which  is  also  reported  in  1  Eq.  Ca.  Ab.  89,  and  3  P. 
Wms.  76,  and  Show.  P.  C.  76)  has  been  followed  by  a  numerous  class  of 
cases :  Cole  v.  Gibson,  1  Ves.  503  ;  Roberts  v.  Roberta,  3  P.  AVms.  74, 
see  Mr.  Cos's  note  ;  Smith  v.  Bruning,  2  Vern.  392  ;  Duke  of  Hamilton 
V.  Lord  Mahon,  Ibid.  652 ;  Boynton  v.  Hubbard,  7  Mass.  112  ;  and  Lord 
Redesdale,  when  Chancellor  of  Ireland,  declared  void  a  bond  given  to 


212 


SMITHS   LAW   OF   CONTRACTS. 


obligation  of  £1000  to  Mrs.  Potter,  conditioned  to  pay 
her  <£500  within  three  months  after  he  should  be  mar- 
ried to  Lady  Ogle,  "a  widow,"  the  reporter  says,  "of 
great  fortune  and  honor,  for  she  was  the  daughter  and 
heir  of  Jocelyn  Percy,  Earl  of  Northumberland."  The 
Master  of  the  Rolls  decreed  this  bond  to  be  void;  the 
Lord  Keeper  reversed  the  decree ;  whereupon  there  was 
an  appeal  to  the  House  of  Peers ;  and,  upon  hearing  the 
cause  there,  all  the  Lords  but  three  or  four  were  of 
opinion  that  all  such  contracts  are  of  dangerous  conse- 
quences, and  ought  not  to  be  allowed ;  and  they  reversed 
the  decree  of  dismissal  made  by  the  Lord  Keeper,  and 
decreed  the  obligation  to  be  void. 

Another,  and  an  extensive  class  of  cases  is  that  in 
which  the  contract  has  a  tendency  to  obstruct  the  course 
of  public  justice.  These  must  be  left  for  the  next 
Lecture. 


the  obligee  as  a  remuneration  for  having  assisted  the  elopement  of  the 
obligor  without  the  consent  of  the  wife's  friends,  though  the  bond  was 
given  voluntarily  after  the  marriage,  and  without  any  previous  agree- 
ment therefor :  Williamson  v.  Gihon,  2  Sch.  &  Lef.  362.  The  civil  law, 
however,  it  is  well  known,  in  its  approval  and  encouragement  of  the 
institution  of  marriage,  allowed  the  proxenetce,  or  match-makers,  to 
stipulate,  within  limits,  for  a  reward  for  promoting  marriages :  Code, 
Lib.  5,  tit.  1,  1.  6.— R. ;  Crawford  v.  Russell,  62  Barb.  92. 


ILLEGAL   CONTRACTS.  213 


^LECTURE   VI.  [=^213] 

ILLEGAL  CONTRACTS. FRAUD. GAMING  AND  HORSERACING. 

WAGERS. 

There  is  another  remarkable  instance  of  contracts  fall- 
ing under  the  class  of  which  we  have  been  treating — 
namely,  of  illegality  created  by  the  rules  of  common  law, 
which  it  will  be  right  to  specify  before  proceeding  to 
the  next  branch  of  the  subject.  •  It  consists  of  contracts, 
void,  because  having  a  tendency  to  obstruct  the  administra- 
tion of  justice.  Such  was  the  very  contract  in  Collins 
V.  Blantern,(rt)  before  mentioned — the  case  which  first 
established  that  the  person  who  has  executed  a  deed  is 
not  estopped  from  showing,  by  way  of  defence,  that  it 
was  executed  for  an  illegal  consideration,  although  he 
would  not  have  been  allowed  to  defend  himself  on  the 
ground  that  there  was  no  consideration  for  it  at  all.  In 
that  case,  five  persons  were  indicted  for  perjury,  and  it 
was  agreed  that  Collins,  who  was  their  friend,  should 
buy  ofT  the  prosecutor's  evidence  by  giving  him  a  note 
for  <£350,  in  consideration  of  which  he  undertook  not  to 
appear  at  the  Assizes.  And  it  was  further  agreed  that 
in  *order  to  indemnify  Collins  against  the  con-  r:::9i^-i 
sequences  of  being  called  upon  to  pay  the  note, 
Blantern  should  give  Collins  his  bond  conditioned  for 
the  payment  of  £350,  the  same  sum  for  which  the  note 
was  made.  In  an  action  brought  upon  the  bond,  the 
Court  of  Common  Pleas  held  that  it  was  void,  and  that 
a  plea  showing  the  consideration  on  which  it  was  given 
was  a  good  answer  to  the  action.     There  is  a  case  of 

(a)  2  Wils.  341,  1  Smith's  L.  C.  325,  (6th  ed.) 


214  smith's  law  of  contracts. 

Unwin  v.  Leaper,(Z»)  which  involves  the  same  principle. 
There,  an  action  of  ejectment  which  had  been  brought  by 
Unwin  against  Leaper,  when  the  latter  gave  notice  of 
his  intention  to  sue  Unwin  for  certain  statutable  penal- 
ties incurred  by  him.  Thereupon  it  was  arranged  that 
the  action  of  ejectment  should  be  dropped,  that  Unwin 
should  pay  down  £50  towards  Leaper's  expenses  in  that 
action,  and  that  Leaper  should  not  proceed  with  the  suit 
for  the  penalties ;  and  the  Court  of  Common  Pleas  held 
that  the  £50  which  had  been  paid  might  be  recovered 
back  as  a  payment  made  in  order  to  compromise  a  penal 
action.  In  another  instance,  (c)  where  one  of  two  parties 
to  an  agreement  to  suppress  a  prosecution  for  embezzle- 
ment, sued  the  other  for  an  injury  indirectly  arising  out 
of  that  agreement,  he  was  not  allowed  to  maintain  the 
action ;  and  it  appears  in  this  case,  that  Avhere  a  man 
r*9l  h~\  ^^^^^^  make  out  a  claim,  except  ^through  an 
illegal  transaction,  such  claim  cannot  be  effectu- 
ated in  a  court  of  law.  Of  the  soundness  of  these  deci- 
sions, to  use  the  w^ords  of  the  Court  of  Queen's  Bench  in 
speaking  of  that  in  Collins  v.  Blantern,  no  doubt  can  be 
entertained,  whether  the  party  accused  were  innocent 
or  guilty  of  the  crime  charged.  If  innocent,  the  law 
was  abused  for  the  purpose  of  extortion ;  (c? )  if  guilty, 
the  law  was  eluded  by  a  corrupt  compromise,  screening 
the  criminal  for  a  bribe,  (e)^ 

(6)  1  M.  &  Gr.  (39  E.  C.  L.  R.)  747. 

(c)  Fivaz  V.  NichoUs,  2  C.  B.  (52  E.  C.  L.  R.)  501.  See  Simpson  v. 
Bloss,  7  Taunt.  (2  E.  C.  L.  R.)  246  ;  Att.-Gen.  v.  HoUin^^sworth,  27  L. 
J.  (Ex.)  102;  2H.  &  N.  416. 

(d)  Goodall  v.  Lowndes,  6  Q.  B.  (51  E.  C.  L.  R.)  464. 

(e)  Keir  v.  Leeman,  6  Q.  B.  (51  E.  C.  L.  R.)  316. 

^  Thus,  no  action  will  lie  on  a  contract  to  procure  the  appointment  of 
clerk  of  a  court,  or  any  office  relating  to  the  administration  of  justice : 
Haralson  ;;.  Dickins,  2  Car.  Law  66  ;  Lewis  v.  Knox,  2  Bibb.  453 ;  Carl- 
ton V.  Whitcher,  5  N.  H.   196  ;  Proprietors  v.  Page,  6  Ibid.  183 ;  or  to 


ILLEGAL    CONTRACTS.  215 

Here,  however,  it  is  convenient  to  observe  that  there 
are   some  instances,   in  which   indictments  for  misde- 


promote  the  election  of  a  candidate  for  office :  Swayze  v.  Hull,  3  Halst. 
54 ;  Dearborn  v.  Bowman,  3  Met.  135 ;  Duke  v.  Asbee,  11  Ired.  112.  So 
of  the  procuring  or  defeating  by  improper  means  or  personal  influence 
the  passage  of  an  act  of  the  legislature :  Wood  v.  M'Cann,  6  Dana  366 ; 
Clippenger  v.  Hepbaugh,  5  W.  &  S.  315;  or  the  use  of  interest  to  pro- 
cure the  pardon  of  a  convict :  Norman  v.  Cole,  3  Esp.  253  ;  Hatzfield  v. 
Gulden,  7  Watts  152. 

So,  where  in  contemplation  of  an  assignment  for,  or  composition  with 
creditors,  or  of  bankruptcy,  an  agreement  whereby  one  creditor  is  to 
receive  more  than  the  others,  cannot,  if  unknown  to  the  rest,  be  en- 
forced:  Jackson  v.  Lomas,  4  T.  K.  169  ;  Smith  v.  Cuff,  6  M.  &  S.  160; 
Baker  v.  Matlack,  1  Ashm.  68  ;  Mann  v.  Darlington,  15  Penn,  St.  312. 
(See  Bradshaw  v.  Bradshaw,  9  M.  &  W.  28,  and  Horton  v.  Riley,  11 
Ibid.  492,  as  to  the  debtor's  right  to  recover  back  money  so  paid,  which 
right  is  distinguished  from  the  principle  in  pari  delicto,  potior  est  con- 
ditio defendentis,  on  the  ground  of  advantage  being  taken  of  the  debt- 
or's circumstances  to  exercise  oppression  over  him.) 

A  class  of  cases,  however,  should  be  here  referred  to  as  of  constant 
occurrence.  These  depend  on  contracts  based  on  a  compromise  or  com- 
pounding of  some  offence.  It  is  well  settled  that  an  agreement  to  com- 
pound a  felony  will  not  be  enforced,  and  any  security  based  upon  such 
a  consideration  will  be  void  :  on  the  other  hand,  some  prosecutions  for 
misdemeanor,  as  for  example,  for  bastardy:  Holcomb  v.  Stimpson,  8 
Verm.  144;  Maurer  v.  Mitchell,  9  W.  &  S.  71  ;  Robinson  v.  Crenshaw, 
2  Stew.  &  Port.  276  ;  or,  for  assault  and  battery  :  Price  v.  Summers,  2 
South.  578  (unless  when  coupled  with  a  riot:  Keir  v.  Leeman,  6  Q.  B. 
(51  E.  C.  L.  R.)  308  ;  in  error,  9  Ibid.  (58  E.  C.  L.  R.)  371  ;  or  with  an 
intent  to  kill :  Gardiner  v.  Maxey,  9  B.  Mon.  90),  are  allowed  to  beconi- 
promised  by  the  parties,  and  to  form  a  valid  consideration  for  promises 
based  on  such  compromise.  Where,  however,  the  relation  of  debtor  and 
creditor  has  existed  between  the  parties,  the  compromise  of  prosecutions 
for  secreting  property,  for  obtaining  money  under  false  pretences,  and 
the  like,  is,  if  not  held  tu  form  an  illegal  consideration  (as  it  was  in  the 
late  case  of  Shaw  i'.  Reed,  30  Me.  105),  at  least  looked  upon  with  the 
strongest  disfavor,  as  affording  a  ready  instrument  to  abuse  and  oppres- 
sion :  Prough  V.  Entriken,  11  Penn.  St.  81.  The  result  of  the  author- 
ities generally  upon  this  subject  appears  to  be,  that  where  the  misde- 
meanor is  one  in  which  the  welfare  of  societ}'  is  immediately  concerned, 
agreements  based  upon  their  compromise  will  not  be  sanctioned  (and  its 
having  been  done  originally  by  the  leave  of  the  Court  makes  no  difference  : 
Keir  w.  Leeman,  9  Q.  B.  (58  E.  C.  L.  R.)  394),  but  the  rigor  of  the  rule  will 


215  smith's  law  of  contracts. 

meanors  may  be  comi^romised.  It  is  well  known  that  a 
party   committing  certain  private  injuries   may  be  in- 

be  relaxed  in  proportion  as  the  general  welfare  ceases  to  be  interested,  and 
the  offence  and  its  punishment  becomes  personal  between  the  parties,  and 
still  more  as  the  prosecution  loses  a  criminal  complexion,  and  assumes  a 
civil  one.  In  perhaps  the  most  .recent  prominent  case  in  England,  Keir 
V.  Leeman,  swpra^  which  went  on  error  from  the  Queen's  Bench  to  the 
Exchequer  Chamber,  Chief  Justice  Tindal,  in  delivering  the  opinion  of 
the  latter  tribunal,  said,  that  if  the  matter  were  res  Integra^  they  would 
have  no  doubt  in  holding  that  any  compromise  of  any  misdemeanor,  or 
any  public  offence,  was  an  illegal  consideration  to  support  a  promise, 
and  that  it  was  remarkable  what  very  little  authority,  consisting  rather 
of  dicta  than  decision,  there  was  to  support  such  considerations.  "  We 
have  no  doubt  that  in  all  offences  which  involve  damages  to  an  injured 
party  for  which  he  may  maintain  an  action,  it  is  competent  for  him,  not- 
withstanding they  are  also  of  a  public  nature,  to  compromise  or  settle  his 
private  damage  in  any  way  he  may  think  fit.  It  is  said,  indeed,  that  in 
the  case  of  an  assault  he  may  also  undertake  not  to  prosecute  on  behalf 
of  the  public.  It  may  be  so,  but  we  are  not  disposed  to  extend  this  any 
further."  And  the  current  of  more  recent  authorities  on  this  side  of  the 
Atlantic,  sets  strongly  against  the  validity  of  such  considerations  :  Clark 
V.  Kicker,  14  N.  H.  44;  Com.  v.  Johnson,  3  Cush.  454;  Gardner  v. 
Maxey,  9  B.  Mon.  90.— r. 

Where  two  persons  apply  to  the  Governor  of  the  State  to  be  appointed 
to  the  same  office,  and  it  is  agreed  that  one  of  them  shall  withdraw  his 
application  and  aid  the  other  in  procuring  the  appointment,  in  consid- 
eration of  which  the  fees  and  emoluments  of  the  office  are  to  be  divided 
between  them,  such  contract  is  illegal  and  void :  Gray  v.  Hook,  4  Coms. 
449.  So  no  action  will  lie  for  services  as  agent  in  attending  to  a  claim 
against  the  State,  before  the  legislature,  agreements  in  respect  to  such 
services  being  against  public  policy,  and  prejudicial  to  sound  legislation ; 
nor  can  a  recovery  be  had  in  such  a  case  on  a  quantum  meruit,  there 
being  no  legal  service  performed  :  Harris' v.  Roop,  10  Barb.  489.  Acon- 
tract  for  the  sale  of  the  personal  influence  of  the  plaintiff  to  procure  the 
enactment  of  a  private  statute  for  the  benefit  of  the  defendant  is  con- 
trary to  public  policy  and  void  :  Frost  v.  Belmont,  6  Allen  152  ;  Rose  v. 
Truax,  21  Barb.  361  ;  Gil  v.  Davis,  12  La.  Ann.  1:19 ;  Davison  v.  Sey- 
mour, 1  Bosw.  88 ;  Powers  v.  Skinner,  34  Verm.  274.  Services  ren- 
dered in  obtaining  the  passage  of  laws  by  the  legislature  may  support 
a  claim  for  compensation  when  publicly  rendered  by  advocates  disclos- 
ing their  true  relation  to  the  subject:  Wildey  v.  Collier,  7  Md.  273; 
Sedgwick  v.  Stanton,  4  Kern.  289;  Bryan  v.  Reynolds,  5  Wis.  200; 
Brown  v.  Brown,  34  Barb.  533.     An  agreement  between  a  subordinate 


ILLEGAL    CONTRACTS.  215 

dieted,  as  for  a  misdemeanor,  as  well  as  sued  in  a  civil 
action  ;  a  remedy  necessary  for  the  party  injured,  who, 
if  he  could  proceed  by  action  only  would  be  in  fact  re- 
mediless in  cases  where  the  defendant  could  not  pay  the 
damages  recovered.  In  many  such  cases  it  can  hardly 
be  admitted  that  the  prosecution  is  to  be  considered  pub- 
lic, or  that  the  public  interest  is  concerned  in  bringing 
such  an  offender  to  justice  by  way  of  example  to  others. 
Substantially,  the  only  one  who  suffers  by  the  wrong  is 
the  individual  against  whom  it  is  committed.  In  in- 
stances of  this  kind,  the  law  does  not  forbid  a  compro- 
mise between  the  injurer  and  the  ^injured.  p,(y-,  ^-j 
"'  The  law,"  says  the  Court  of  Queen's  Bench, 
Keir  v.  Leeman,(/)  "will  permit  a  compromise  of  all 
offences,  though  made  the  subject  of  a  criminal  prosecu- 
tion, for  which  offences  the  injured  party  might  sue  and 
recover  damages  in  an  action.  It  is  often  the  only 
manner  in  which  he  can  obtain  redress.  But  if  the 
offence  is  of  a  public  nature,  no  agreement  can  be  valid 
that  is  founded  on  the  consideration  of  stifling  a  prose- 

(/)  6  Q.  B.  (51  E.  C.  L.  R.)  321. 


officer  in  a  custom  house  receiving  a  salary  as  such  and  a  merchant  who 
claimed  the  return  of  certain  duties  that  the  former  should  labor  to 
obtain  them  for  a  compensation  is  illegal  and  void :  Satterlee  v.  Jones, 
3  Duer  102.  A  promise  to  pay  for  services  and  expenses  in  procuring 
a  pardon  for  a  convict  in  the  state  prison  is  not  illegal  or  invalid  :  Chad- 
wick  «;.  Knox,  11  Fost.  226;  contra,  Kribben  v.  Haycraft,  26  Mo.  396. 
A  contract  not  to  bid  at  a  judicial  sale  is  void :  Hook  v.  Turner,  22  Ibid. 
333.  But  not  an  agreement  to  purchase  jointly  and  afterwards  divide  : 
M'Minn  v.  Phipps,  3  Sneed  196.  A  contract  for  the  sale  of  an  office  is 
void  as  against  the  policy  of  the  law :  Eddy  v.  Capron,  4  R.  I.  394.  An 
indemnity  against  the  publication  of  a  libel  is  void  :  Lea  v.  Collins,  4 
Sneed  393.  And  see  Spinks  v.  Davis,  32  Miss.  152  ;  Nicholls  v.  Mudgett, 
32  Verm.  546;  Devlin  v.  Brady,  32  Barb.  518;  Morrell-r.  Quarles,  35 
Ala.  544 ;  Cook  v.  Shipman,  24  111.  614 ;  Brisbois  v.  Sibley,  1  Minn. 
230  ;  Valentine  v.  Stewart,  15  Cal.  387  ;  Tool  Co.  v.  Norris,  2  Wall.  (S. 
C.)  45. 

16 


216  smith's  law  of  contracts. 

cution  for  it."  The  law  will  therefore  sanction  a  bond, 
conditioned  to  remove  a  public  nuisance,  founded  on  the 
abandonment  of  an  indictment  for  that  nuisance,  which 
is  in  fact  a  very  common  instance  of  compromise.  (^) 
The  compromise  of  indictments  for  assaults  is  another 
frequent  instance  of  the  same  rule.(/i)  But  if,  as  in 
Keir  v.  Leeman,  the  offence  is  not  confined  to  personal 
injury,  but  is  accompanied  with  riot  and  the  obstruction 
of  a  public  officer  in  the  execution  of  his  duty,  these  are 
matters  of  public  concern,  and  therefore  not  legally  the 
subject  of  a  compromise. 

To  return  to  the  subject  of  contracts  tending  to  ob- 
struct the  course  of  justice.  The  case  of  Coppock  v. 
Bower,  (/)  in  which  an  agreement  to  withdraw  an  elec- 
tion petition  in  consideration  of  a  sura  of  money  was 
held  void,  is  another  instance  of  their  illegality. 
'So  is  the  case  of  Arkwright  v.  Cantrell, (/t) 
where  the  grant  of  a  judicial  office  to  a  person  interested 
in  the  matters  which  would  become  the  subjects  of  adju- 
dication, was  held  void.  For  a  similar  reason,  contracts 
to  induce  voters,  for  any  consideration  of  advantage  to 
themselves,  to  vote  in  favor  of  a  particular  candidate, 
are  illegal  and  void.  Thus,  when  a  candidate  himself 
makes  a  contract  with  any  one  to  supply  meat  and  drink 
to  electors,  it  is  void ;  and  if  the  things  be  supplied,  the 
person  supplying  cannot  recover  the  price  from  the  can- 
didate ;  (/)  for,  by  the  policy  of  the  law,  the  electors 
should  be  free  to  use  their  own  unbiassed  judgment  in 
selecting  the  candidate  most  fit  to  serve  the  public  as  a 

[g)  Fallowes  v.  Taylor,  7  T.  R.  475. 
\h)  Baker  v.  Townsend,  7  Taunt.  (2  E.  C.  L.  R.)  422. 
(i)  4  M.  &  W.  361,  ante,  p.  18. 

(yfc)  7  Ad.  &  E.  (34  E.  C.  L.  R.)  365.     See  Dimes  v.  Grand  Junction 
Canal  Company,  3  H.  L.  C.  759.     A  very  remarkable  case. 
(0  Thomas  w.  Edwards,  2  M.  &  W.  218. 


[*217]    ,^, 


ILLEGAL    CONTRACTS.  217 

member  of  the  great  council  of  the  nation.  Persons  who 
have  the  right  of  appointing  to  public  offices  of  trust  or 
to  any  favor  from  the  Crown,  are  bound  to  use  a  like 
discrimination.  All  agreements,  therefore,  to  pay  money 
for  an  appointment  to  any  public  office  of  trust,  or  for 
the  grant  of  any  public  favor,  are  illegal.  (^;^)^ 

Agreements  to  indemnify  persons  against  the  conse- 
quences of  illegal  acts  faU  within  the  same  *rule 
as  contracts  directly  to  obstruct  the  administra-  ^  '^  -^ 
tion  of  justice,  (w)"  So  also  do  all  promises  which  are 
made  to  obtain  release  from  duress  of  person  by  illegal 
arrest,  or  under  compulsion  of  colorable  legal  process, 
whereby  it  is  made  the  instrument  of  oppression  or  ex- 
tortion ;  but  not  where  the  arrest  was  legal ;  (o)  and  for 

(m)  Parsons  v.  Thompson,  1  H.  Bl.  322 ;  Hopkins  v.  Prescott,  4  C.  B. 
(56  E.  C.  L.  R.)  578  ;  Harrington  v.  Du  Chatel,  1  Bro.  C.  C.  124 ;  Grc-eme 
V.  Wroughton,  24  L.  J.  (Ex.)  265 ;  Corp.  of  Liverpool  v.  Wright,  28  L. 
J.  (Ch.)  868. 

(n)  Shackell  v.  Rosier.  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  634. 

(o)  See  The  Duke  de  Cadaval  v.  Collins,  4  A.  &  E.  (31  E.  C.  L.  R.) 
858;  Gumming  v.  Hooper,  11  Q.  B.  (63  E.  C.  L.  R.)  112;  Johnson  v. 
Royal  Mail  Steam  Packet  Company,  L.  R.  3  C.  P.  38  ;  37  L.  J.  (C.  P.) 
33. 

1  Frost  V.  Belmont,  6  Allen  152;  Tool  Co.  v.  Norris,  2  Wall.  (S.  C.) 
45. 

^  Mitchell  V.  Vance,  5  Mon.  529  ;  unless  the  illegal  act  is  already  done, 
in  ■which  case,  the  agreement  to  indemnify  is  no  encouragement  to  do 
future  harm  :  Haskett  v.  Tilley,  11  Mod.  93  ;  Kneeland  v.  Rogers,  2  Hall 
(N.  Y.)  587.  Thus  a  bond  given  to  a  sheriff  to  indemnify  him  against  a 
voluntary  escape  which  had  happened  is  valid,  though  if  given  in  antici- 
pation of  such  an  escape  it  would  fall  within  the  general  rule  :  Given  v. 
Diggs,  1  Caines  450  ;  Doty  v.  Wilson,  14  Johns.  381  ;  and  these  cases,  it 
will  be  perceived,  are  analogous  in  principle  to  those  which,  while  hold- 
ing to  be  invalid  bonds  executed  in  consideration  of  a  future  separation 
between  husband  and  wife,  yet  enforce  such  instruments  where  the  sepa- 
ration is  to  be  immediate,  or  has  already  taken  place.— r. 

An  agreement  to  indemnify  a  sheriff  for  an  act  to  be  done  by  him 
in  plain  violation  of  his  official  duty,  is  invalid  ;  but  such  an  agreement, 
in  the  case  of  a  disputed  right,  is  lawful :  Shotwell  v.  Ilamblin,  23  Miss. 
156. 


218  siviith's  law  of  contracts. 

similar  reasons  money  extorted  by  duress  of  the  plain- 
tiff's goods,  and  paid  by  him  under  protest,  may  be  re- 
covered back.(^)^ 

Maintenance  and  champerty  are  so  often  talked  of  as 
contracts  having  an  illegal  object  and  consideration,  that 
they  seem  to  require  a  slight  allusion  here.  Mainten- 
ance consists  in  one  who  has  no  interest  in  the  subject 
of  a  suit,  and  no  just  right  to  interfere  in  it,  aiding  by 
money  or  otherwise  the  parties  interested.  This  is  for- 
bidden by  the  law,  whose  policy  has  always  been  to 
discourage  disputes  and  litigation.  A  contract  therefore 
with  such  an  object  is  void ;  but  a  man  who  has  an  in- 
terest in  the  cause,  or  reasonably  thinks  he  has,  is  not 

(p)  Ashmole  v.  Wainwright,  2  Q.  B.  (42  E.  C.  L.  R.)  837 ;  Wakefield 
V.  Newton,  6  Q.  B.  (51  E.  C.  L.  R.)  276  ;  Fernley  v.  Branson,  20  L.  J. 
(Q.  B.)  178. 

^  It  is  no  objection  to  the  validity  of  a  contract  fairly  entered  into, 
where  no  advantage  was  sought  or  taken  by  the  other  party,  that  at  the 
time  of  entering  into  it  he  was  under  arrest ;  but  where  legal  process 
has  been  used  as  a  means  of  oppression  and  to  extort  disadvantageous 
terms  from  a  party  in  custody,  instruments  in  writing  so  obtained  will 
be  set  a'side  :  Stebbins  v.  Niles,  25  Miss.  267  ;  Wells  v.  Barnett,  7  Tex. 
584  ;  Smith  v.  Atwood,  14  Ga.  402.  A  note  given  by  a  person  lawfully 
imprisoned,  in  order  to  procure  his  discharge,  is  not  invalid  as  being 
given  under  duress :  Bates  v.  Butler,  46  Me.  387. 

As  to  duress  of  imprisonment  see  Phelps  v.  Tuschlag,  34  Tex.  371  ; 
Eeller  v.  Green,  26  Mich.  70.  An  employment  of  criminal  process  to 
obtain  civil  redress  is  a  misuse  of  process  and  a  fraud  upon-the  law ; 
and  securities  procured  under  the  pressure  of  such  a  proceeding,  by  the 
party  promoting  it,  cannot  be  enforced :  Seiber  v.  Price,  26  Mich.  518. 
An  arrest  under  a  legal  warrant  if  the  object  is  to  extort  money  or  to 
coerce  the  settlement  of  a  civil  claim  constitutes  duress :  Hackett  v. 
King,  6  Allen  58. 

As  to  duress  per  minas  see  Green  v.  Scrunage,  19  Iowa  461 ;  Tapley  v. 
Tapley,  10  Minn.  448 ;  Bane  v.  Detrick,  52  111.  19  ;  Tharman  v.  Burt, 
53  Ibid.  129  ;  Bosley  v.  Shannic,  26  Ark.  280 ;  Knapp  v.  Hyde,  60  Barb. 
80 ;  Miller  v.  Miller,  68  Penn.  St.  486 ;  Plant  v.  Gunn,  2  AVoods  372 ; 
Smith  V.  Rowley,  66  Barb.  502. 

As  to  duress  of  property  see  Spaids  v.  Barrett,  57  111.  289 ;  Hibbard 
V.  Mills,  46  Term.  243 


ILLEGAL   CONTRACTS.  218 

guilty  of  maintenance  if  he  prosecutes  it  in  common 

with   others,  and  his   aOTcement  so  to   do  is    ^.^^^^ 

.  .  .  r  2191 

*good.(§')     If  a  person,  having  no  interest  in  a    ■-         -■ 

suit,  interferes  with  the  object  of  sharing  in  the  fruits 
(Df  the  suit,  this  is  champerty .  (r)  If,  therefore,  an 
attorney  agrees  not  to  charge  his  client  costs,  in  con- 
sideration of  having  for  himself  a  proportion  of  what  he 
may  recover  for  him,  this  agreement  is  champerty,  and 
■  consequently  illegal  and  void.  (.5)  If  no  suit  be  depend- 
ing, or  any  stipulation  for  the  commencement  of  one,  a 
contract  to  supply  documents  and  information  whereby 
property  may  be  recovered,  in  consideration  of  a  share 
of  the  property  when  recovered,  is  legal.  But  if  per- 
sons, having  themselves  no  claim  on  the  property,  agree 
with  a  claimant  that  legal  proceedings  shall  be  instituted 
in  his  name  to  recover  it,  and  they  will  supply  him  with 
document,  information,  and  evidence  not  specified,  but 
such  evidence  as  will  enable  him  to  recover  it,  and  to 
be  rewarded  with  a  share  when  recovered,  this  is  main- 
tenance in  its  worst  aspect,  [t)  And  where,  in  consider- 
ation that  the  plaintiff  would  take  the  necessary  steps 
to  contest  a  will,  *and  would  advance  money  ^  ^^^_, 
and  obtain  evidence  for  such  purpose,  and  in-  ■-  -■ 
struct  an  attorney,  defendant  promised  plaintiff  half  the 
property  which  might  come  to  defendant  by  reason  of 
such  proceedings ;  this  agreement  was  held  void  as 
amounting  to  champerty ;  although  the  plaintift'  was  a 

(2)  Findon  v.  Parker,  11  M.  &  W.  675. 

(;•)  Williams  v.  Protheroe,  3  Y.  &  J.  129  ;  Stanley  v.  Jones,  7  Bing. 
(20  E.  C.  L.  R.)  369 ;  Hilton  v.  Woods,  36  L.  J.  (Ch.)  941. 

(s)  Re  Masters,  4  D.  P.  C.  18,  per  Coleridge,  J. ;  ex  ^a?-^e.Yeatman, 
Ibid.  304;  Earle  v.  Ilopwood,  30  L.  J.  (C.  P.)  21 7. 

(0  Sprye  v.  Porter,  26  L.  J.  (Q.  B.)  64  ;  7  E.  &  B.  (90  E.  C.  L.  R.)  58 ; 
Simpson  v.  Lamb,  Ibid.  J21 ;  7  E.  &  B.  (90  E.  C.  L.  R.)  84  ;  Knight  v. 
Bowyer,  26  L.  J.  (Cli.)  769  ;  27  L.  J.  (Ch.)  520;  Anderson  v.  Radoliffe, 
28  L.  J.  (Q.  B.)  32  ;  s.  c.  in  Ex.  Ch.,  29  L.  J.  (Q.  B.)  128. 


220  smith's  law  of  contracts. 

relation  of  the  defendant,  and  had  some  collateral  in- 
terest in  the  suit,  ('m)  It  is  worth  observing,  that  it  is 
mainly  for  the  purpose  of  avoiding  maintenance  that  the 
rule  of  our  law  forbidding  the  assignment  of  choses  in 
action  has  been  established,  (e;)  a  rule  which,  as  the  law 
admits  the  assignee  to  sue  in  the  name  of  the  assignor, 
seldom  interferes  with  the  liberty  required  by  trade 
and  commerce,  and,  by  keeping  up  the  remembrance 
that  the  assignee  can  have  no  rights  to  the  thing  as- 
signed other  than  those  possessed  by  the  assignor  at 
the  time  of  the  assignment,  serves  to  prevent  many  in- 
conveniences which  might  arise,  were  all  choses  in  action 
as  negotiable  as  bills  of  exchange.^ 

All  contracts  between  British  subjects  and  alien  ene- 
mies, not  having  a  license  to  trade  with  this  country, 
are  void,  and  cannot  be  enforced,  even  upon  the  return 
of  peace,  (.t:)  The  sovereign  of  this  country  has  the 
r:i:99i-i  I'iglit  to  proclaim  war,  with  *all  its  conse- 
quences, enforcing  or  mitigating  them  either 
generally  or  in  particular  instances,  as  may  be  thought 
best  by  the  Government.  One  of  these,  consequences 
is,  that  trade  and  dealing  with  the  enemy,  unless  ex- 
pressly permitted,  are  forbidden.    For  a  British  subject, 

{u)  Hutley  v.  Ilutley,  L.  R.  8  Q.  B.  112  ;  42  L.  J,  (Q.  B.)  52. 

{v)  Litt.  347  ;  Co.  Litt.  214  a;  Shep.  Touch.  240.  But  see  also,  as  to 
the  assignment  of  choses  in  action,  36  &  37  Vict.  c.  66,  s.  25,  sub- 
sec.  6. 

{x)  Kensington  v.  Inglis,  8  East  273.  See  Potts  v.  Bell,  8  T.  R. 
548. 

^  The  offence  of  maintenance  seems  now  to  be  confined  to  the  inter- 
meddling of  a  stranger  in  a  suit  for  the  purpose  of  stirring  up  strife  and 
continuing  litigation :  Dorwin  v.  Smith,  35  Verm.  69.  An  agreement 
between  an  attorney  and  his  client  that  he  shall  be  first  paid  out  of  the 
funds  recovered  is  not  maintenance  or  champerty :  Christie  v.  Sawyer, 
44  N.  H.  298  ;  -Jordan  v.  Gillen,  Ibid.  424 ;  3Ioody  v.  Harper,  38  Miss. 
599  ;■  Ryan  v.  Martin,  16  Wis.  57. 


ILLEGAL    CONTRACTS.  221 

not  domiciled  in  a  neutral  country,  to  ship  a  cargo  from 
an  enemy's  port,  y^  lirimd  facie  dealing  and  trading  with 
the  enemy,  and  therefore  forbidden  by  law ;  and  conse- 
quently a  contract  made  before  the  war,  under  which  it 
is  agreed  that  a  cargo  shall  be  shipped  from  a  port 
which,  by  the  declaration  of  war,  becomes  that  of  the 
eneni}^,  is  thereby  rendered  illegal,  and  no  action  can 
be  founded  upon  the  fact  of  its  not  being  performed.  (.^) 
But  if  the  contract  has  been  made  before  the  war  be- 
tween their  respective  countries  began,  the  parties 
thereto  may  sue  upon  it  when  peace  is  restored.  (^) 

Agreements  contravening  the  ends  and  objects  of  the 
enactments  of  the  Legislature,  or,  as  it  is  most  com- 
monly expressed,  the  policy  of  those  enactments,  are 
void.(«)  And  this  class  of  illegality  is  properly  arranged 
with  other  instances  of  illegality  by  the  common  law, 
because  it  does  not  consist  in  the  breach  of  any  enact- 
ment of  a  statute,  *but  violates  the  principle  rH:999-i 
of  the  common  law,  which  is  to  carry  into  effect 
the  intent  and  object  of  the  Legislature.  The  most 
common  instances  of  this  illegality  are  afforded  by 
agreements  to  give  a  creditor  of  a  bankrupt  or  insolvent 
more  than  his  equal  share  of  the  bankrupt's  or  insol- 
vent's estate,  which  it  is  the  object  of  the  Bankrupt  and 
Lisolvent  Acts  to  divide  equally  amongst  his  cred- 
itors. (J)     An  instance  may  also  be  given  from  the  case 

{y)  Esposito  V.  Bowden,  27  L.  J.  (Q.  B.)  17,  in  Ex.  Ch. ;  7  E.  &  B.  (90 
E.  C.  L.  R.)  763 ;  Reid  v.  Hoskins,  24  L.  J.  (Q.  B.)  315  ;  5  E.  &  B.  (85 
E.  C.  L.  R.)  729 ;  26  L.  J.  (Q.  B.)  5  ;  6  E.  &  B.  (88  E.  C.  L.  R.)  953,  in 
Ex.  Ch. 

(z)  Alcenius  v.  Nygrin,  24  L.  J.  (Q.  B.)  19  ;  4  E.  &  B.  (82  E.  C.  L. 
R.)  217. 

(a)  Ritchie  v.  Smith,  6  C.  B.  (60  E.  C.  L.  R.)  462.      - 

(6)  Staines  v.  Wainwright,  6  Bing.  N.  C.  (37  £.  C.  L.  R.)  174;  Davis 
V.  Holding,  1  M.  &  W.  156  ;  Tabram  v.  Freeman,  2  C.  k  M.  451  ;  Wilkin 
V.  Manning,  23  L.  J.  (Ex.)  174  ;  9  Ex.  575.     See  Nerot  v.  Wallace,  3  T. 


222 


SMITHS   LAW   OF   CONTRACTS. 


of  Prole  V.  Wiggins  (c)  where  the  agreement  was  to 
evade  the  provisions  of  the  Apothecaries  Act  (55  Geo. 
III.,  c.  194,  s.  15),  which  require  that  a  student,  pre- 
viously to  being  admitted  to  examination  for  the  pur- 
pose of  obtaining  his  certificate  to  practise  as  an  apoth- 
ecary, should  have  served  an  apprenticeship  for  five 
years.  Here  the  father  of  a  student  agreed  with  an 
apothecary  to  take  his  son  as  an  apprentice  for  two 
years,  but  to  antedate  the  articles,  so  that  it  should 
seem  that  he  had  been  apprenticed  for  the  legal  term  of 
five  years,  in  order  that,  at  the  expiration  of  two  years 
only,  he  might  be  admitted  to  his  examination,  and  gave 
the  apothecary  a  bond  to  secure  the  payment  of  a  pre- 


[*223] 


mium  stipulated  to  be  given  upon  such  appren- 


ticeship. *The  Court  of  Common  Pleas,  how- 
ever, held  that  the  bond  was  clearly  void.  So,  too,  an 
agreement  by  a  shareholder  in  a  company  which  is  being 
compulsorily  wound  up,  that  in  consideration  of  a  pecu- 
niary equivalent  he  will  endeavor  to  postpone  the  mak- 
ing of  a  call,  or  will  support  the  claim  of  a  creditor,  is 
illegal,  as  being  contrary  to  the  policy  of  the  Winding- 
up  Acts.(c?) 

In  the  cases  lately  referred  to,  so  much  is  said  of  the 
policy  of  the  law  and  public  policy,  that  it  is  desirable 
to  add  a  few  words  in  explanation  of  them.  These 
terms  have  been  used  to  express  an  important  principle 
from  very  early  periods,  (e)  and  one  of  the  most  impor- 
tant cases  of  very  modern  times  has  been  decided  upon 
grounds  of  public  policy.  (/)     They  are,  however,  used 

R.  17,  a  very  instructive  case  ;  Hills  v.  Mitson,  22  L.  J.  (Ex.)  273  ;  8  Ex. 
751  ;  Murray  v.  Reeves,  8  B.  &  C.  (15  E.  C.  L.  R.)  421;  Humphries  v. 
Smith,  22  L.  J.  (Q.  B.)  121. 

(c)  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  230. 

{d)  Elliott  V.  Richardson,  L.  R.  5  C.  P.  744  ;  39  L.  J.  (C.  P.)  340. 

(e)  Shep.  Touch.  132  ;  Co.  Litt.  206  b. 

(/)  Egerton  v.  Brownlow,  4  H.  L.  C.  1. 


ILLEGAL   CONTRACTS.  223 

indiscriminately  in  many  of  the  cases,  although  perhaps 
the  phrase  "policy  of  the  law"  indicates  more  correctly 
the  sense  in  which  the  terms  are  used  in  law,  than  the 
words  "public  policy."  Whichever  form  is  employed, 
two  distinct  classes  of  things  are  referred  to  by  them. 
Sometimes  they  indicate  the  spirit  of  a  law  as  distin- 
guished from  the  letter  of  it;  as  when  it  is  said  that 
contracts  made  by  a  trader,  giving  a  preference  to  par- 
ticular creditors,  although  not  forbidden  by  the  letter  of 
any  enactment,  *  violate  the  policy  of  the  bank-  r.<:o  94^-1 
rupt  laws,  the  first  object  and  policy  of  those 
laws  being  to  make  a  rateable- distribution  of  the  bank- 
rupt's property  amongst  all  his  creditors.  (</)  In  this 
sense  the  words  are  also  used,  when,  in  construing  a 
particular  law,  the  Judges  look  at  the  object  and  policy 
with  which  it  was  framed,  and  the  evil  which  it  was 
apparently  intended  to  remove.  (/^)  They  use  the 
policy  of  a  particular  law  as  a  key  to  open  its  con- 
struction. 

At  other  times  these  expressions  indicate  a  principleU 

1  of  law,  which  holds  that  no  subject  can  lawfully  do  thaii 

r  which  has  a  tendency  to  be  injurious  to  the  public,  or 

'  against  the  public  good.(z)     If  this  be  understood  as 

the  public  good,  recognised  and  protected  by  the  most 

general  maxims  of  the  law  and  of  the  constitution,  it 

furnishes  a  rule  much  more  general  than  the  first  class, 

yet  definite   in  its  terms,  and  clearly  distinguishable 

from  that  class  of  public  policy  or  political  expediency 

which  would  comprise  such  questions,  as,  whether  it  is 

wise  to  have  a  sinking  fund  or  a  paper  circulation,  and 

which  would  properly  guide  the  Legislature  or  the  ex- 

[g)  4  H.  L.   C.  87,  per  Cresswell,  J.  ;  Coles  v.  Strick,  U)  Q.  B.  (69 
E.  C.  L.  R.)  2. 

{h)  Egerton  v.  Brownlow,  at  p.  107,  per  Aldersou,  B. 
(i)  Ibid.  196,  per  Lord  Truro. 


224 


SMITH  S    LAAV   OF    CONTRACTS. 


[*225] 


ecutive  gOA^ernment  in  determining  any  question  which 
they  might  have  to  deal  with.  It  is  evident  that  Courts 
of  Law  cannot  decide  upon  these  considerations. 

It  would  seem  that  all  the  cases  which  have  been 
decided  upon  the  ground  of  public  policy  are 
^referable  to  one  or  other  of  the  two  classes 
above  mentioned,  and  perhaps  this  section  of  law  cannot 
be  summed  up  in  a  way  more  satisfactory  to  the  reader 
than  by  quoting  the  words  of  Parker,  C.  J.,  in  the 
famous  case  of  Mitchell  z;.  Reynolds :  (/c)  "All  the  in- 
stances of  a  condition  against  law  in  a  proper  sense  are 
reducible  under  one  of  these  heads:  1st,  either  to  do 
something  that  is  malum  in  se  or  malum  prohibitum;  2dly, 
to  omit  the  doing  of  something  that  is  a  duty;  odly,  to 
encourage  such  crimes  and  omissions.  Such  conditions 
as  these,  the  law  will  always,  and  without  regard  to 
circumstances,  defeat,  being  concerned  to  remove  all 
temptations  and  inducements  to  those  crimes."  For 
when  the  letter  of  the  law  forbids  to  do  anything  which 
is  malum  in  se  or  malum  prohibitum,  and  prescribes  the 
performance  of  all  which  it  considers  as. a  duty,  it  may 
well  be  thought  that  public  policy  or  the  policy  of  the 
law  forbids  to  do  anything  which  may  encourage  the 
wrong  or  deter  from  the  duty.^ 

The  instances  which  I  have  mentioned  are  those  in 
which  illegality  at  common  law  is  most  frequently  set 
up  for  the  purpose  of  invalidating  a  contract.     To  these 

{k)  1  P.  Wms.  189. 

^  Debts  contracted  for  supplies  used  in  carrying  out  an  illegal  con- 
tract may  be  recovered  notwithstanding  the  knowledge  of  the  creditor 
that  the  supplies  were  to  be  used  for  such  a  purpose  ;  but  the  creditor 
cannot  recover  if  he  did  any  act  in  aid  of  the  illegal  purpose  :  Kottwitz 
V.  Alexander,  34  Tex.  689.  Money  loaned  to  be  wagered  on  a  horse- 
race cannot  be  recovered  :  Alfriend  v.  Hughes,  4  Bush  40  ;  M'Gavock 
V.  Puryear,  6  Cold.  34  ;  Tatum  v.  Kelley,  25  Ark.  209. 


ILLEGAL    CONTRACTS.  225 

must  be  added  the  third  class  of  cases  which  I  speci- 
fied: those,  namely,  in  which  the  contract  is  avoided  on 
the  ground  of  fraud;  that  is,  deceit  practised  upon  the 
contracting  party  *in  order  to  induce  him  to  r^.e}c)c,-i 
enter  into  it.(/)  This  is  so  well  known  a 
point  and  one  of  such  continued  recurrence  in  prac- 
tice, that  it  is  useless  to  multiply  examples  of  its  appli- 
cation. As  to  the  deceit,  it  may  be  of  an  active  kind, 
as  falsehood  and  misrepresentation  (w?)  actually  used  by 
one  party  for  the  purpose  of  deceiving  the  other ;  or  it 
may  be  passive,  as  where  a  vendor  knows  that  a  pur- 
chaser labors  under  a  delusion,  which  he  also  knows  is 
influencing  his  judgment  in  favor  of  purchasing  and 
suffers  him  to  complete  his  purchase  under  that  delu- 
sion. (?i)^  The  plaintiffs  prepared  an  agreement  of  guar- 
anty in  which  they  recited  a  prior  agreement,  by  which 
it  appeared  that  they  had  already  trusted  the  debtor  on 
the  guaranty  of  A.  B.,  that  the  debtor  had  been  some- 
time salesman  to  them,  on  the  terms  that  he  was  to  be 
answerable  for  the  price  of  the  articles  sold  by  him,  and 
to  pay  for  them  monthly,  and  that  in  order  to  induce 
them  to  continue  the  arrangement  defendant  had  agreed 

{I)  Evans  v.  Edmonds,  22  L.  J.  (C.  P.)  211  ;  13  C.  B.  (76  E.  C.L.  R.) 
777;  Bwlch  y  Plwmhead  Mining  Company  i\  Baynes,  36  L.  J.  (Ex.) 
183  ;  Central  Railway  Company  of  Venezuela  v.  Kisch,  36  L.  J.  (Ch.) 
849  ;  Ross  V.  Estates  Investment  Society,  36  L.  J.  (Ch.)  54. 

(m)  Taylor  v.  Ashton,  11  M.  &  W.  400  ;  Barley  v.  Walford,  9  Q.  B. 
(58  E.  C.  L.  R.)  197  ;  Barnes  v.  Fennel,  2  H.  L.  C.  497  ;  Gerhard  v. 
Bates,  22  L.  J.  (Q.  B.)  367  ;  2  E.  &  B.  (75  E.  C.  L.  R.)  476,  s.  c. 

(n)  Hill  V.  Gray,  1  Stark  (2  E.  C.  L.  R.)  434.  See  Keates  v.  Lord 
Cadogan,  20  L.  J.  (C.  P.)  76  ;  W)  C.  B.  (70  E.  C.  L.  R.)  591. 

^  A  contract  to  be  obligatory  must  be  justly  and  fairly  made.  The 
undue  concealment  which  amounts  to  a  fraud  is  the  non-disclosure  of 
those  facts  and  circumstances  which  one  party  is  under  some  legal  or 
equitable  obligation  to  communicate  to  the  other,  and  which  the  latter 
has  a  right  to  know.  The  concealment  of  facts  must  be  by  a  party  who 
is  under  some  special  obligation,  by  confidence  reposed  or  otherwise,  to 
communicate  them  trulv  :  Mitchell  v.  M'Dougall,  62  111.  498. 


226 


SMITHS   LAW   OF    CONTRACTS. 


[*227] 


to  give  a  guaranty  as  after-mentioned.  The  agreement 
'"then  went  on  to  provide  that  defendant  should 
give  a  continuing  guaranty  to  plaintiffs  for 
three  years,  to  secure  the  amount  of  any  balance  that 
might  at  any  time  during  those  years  be  due  to  them. 
But  it  did  not  recite,  as  was  the  feet,  that  any  debt  was 
then  due  to  them,  nor  did  the  defendant  know  it.  This 
agreement  was  executed  by  defendant,  without  making 
any  inquiry.  The  Exchequer  Chamber  considered  that 
there  was  evidence  that  plaintiffs  had  intentionally  made 
a  fraudulent  misrepresentation  to  defendant  to^  induce 
him  to  sign  the  agreement,  (o)  If  the  representation  be 
not  known  to  be  false  by  the  utterer  of  it,  or  be  not 
used  with  intent  to  deceive,  it  will  not  amount  to  fraud, 
although  really  false.  (^)  Moral  fraud  in  a  representa- 
tion is  essential  in  order  to  invalidate  a  contract  made 
upon  the  faith  of  that  representation.  But  it  is  not 
necessary,  in  order  to  constitute  moral  fraud,  that  it 
should  be  false  to  the  knowledge  of  the  party  making 
it:  if  untrue  in  fact,  and  not  believed  to  he  true  by  the 
party  making  it,  and  made  for  a  fraudulent  purpose,  it 
is  both  a  legal  and  a  moral  fraud.  (^)  This  deceit,  more- 
over, must  also  actually  induce  the  contracting  party  to 
enter  into  the  contract.  If  he  contracted,  not  believing 
it,  or  trusting  to  his  own  ^judgment,  and  not  to 
the  representation,  he  cannot  avoid  this  contract 
on  account  of  the  falsehood,  (r)^ 


[=■=228] 


(o)  Lee  V.  Jones,  34  L.  J.  (C.  P.)  131. 

[p)  Evans  v.  Collins,  5  Q.  B.  (48  E.  «.  L.  R.)  804,  820  ;  Ex.  Ch.,  in 
error  ;  Ormrod  v.  Huth,  14  M.  &  W.  651  ;  Thorn  v.  Bigland,  22  L.  J. 
(Ex.)  243  ;  8  Ex.  725  s.  c. 

{q)  2  Smith's  L.  C,  6th  ed.,  note  to  Pasley  v.  Freeman,  p.  94. 

(r)  Moens  v.  Heyworth,  10  M.  &  W.  147  ;  Shrewsbury  v.  Blount, 
2  M.  &  Gr.  (40  E.  C.  L.  R.)  475,  per  Tindal,  C.  J. 


^  It  is  in  fact  no  more  than  an  application  of  the  maxim,  simplex  com- 
mendatio  non  ohligat.      Thus  Lord  Brougham  said,  iu  delivering  his 


ILLEGAL   CONTRACTS.  228 

We  next  come  to  tlmt  class  of  contracts  which  are 
old  because  infected  with  illegality,  existing  not  by  the 


judgment  in  the  House  of  Lords,  in  the  great  case  of  Atwood  v.  Small, 
6  Clark  &  Fin.  232,  that  the  inference  he  drew  from  the  authorities  was 
that  "  general  fraudulent  conduct  signifies  nothing  ;  that  general  dis- 
honesty of  purpose  signifies  nothing  ;  that  attempts  to  overreach  go  for 
nothing  ;  that  an  intention  and  design  to  deceive  may  go  for  nothing  ; 
unless  all  this  dishonesty  of  purpose,  all  this  fraud,  all  this  intention 
apd  design,  can  be  connected  with  the  particular  transaction,  and  not 
only  connected  with  the  particular  transaction,  but  must  be  made  to 
be  the  very  ground  upon  which  this  transaction  took  place,  and  must 
have  given  rise  to  this  contract.  If  a  mere  general  intention  to  over- 
reach were  enough,  I  hardly  know  a  contract,  even  between  persons  of 
very  strict  morality,  that  could  stand.  We  generally  find  the  case  to  be 
that  there  has  been  an  attempt  of  the  one  party  to  overreach  the  other, 
and  of  the  other  to  overreach  the  first,  but  that  does  not  make  void  the 
contract."  It  has  therefore  been  held,  that  mere  general  statements  of 
what  property  would  thereafter  be  worth,  afforded  no  ground  for  rescis- 
sion of  the  contract,  the  matter  being  fully  within  the  vendee's  own  cal- 
culation :  Donelson  v.  Weakley,  3  Yerger  178  ;  and  so  of  any  other 
general  representation,  open  to  examination :  Strong  v.  Peters,  2  Root  93 ; 
Bell  V.  Henderson,  6  Howard  311  ;  Anderson  v.  Hill,  12  Sm.  &  Mar. 
683  :  Taylor  v.  Fleet,  4  Barb.  95  ;  Foley  v.  Cowgill,  5  Blackf.  18.  But 
it  must  also  be  observed,  that  although  the  subject  of  the  false  state- 
ment may  be  one  within  the  vendee's  own  range  of  inquiry,  yet  if  the 
statement  is  designedly  made  in  order  to  prevent  such  inquiry,  the  rule 
is  otherwise.  Thus  in  Dobell  v.  Stevens,  3  B.  &  C.  (10  E.  C.  L.  R.)  623, 
in  the  negotiation  of  the  sale  of  the  lease  and  good-will  of  a  public- 
house,  a  false  representation  was  made  by  the  vendor  with  respect  to 
the  quantity  of  beer  drawn  during  a  certain  period.  The  books  were  in 
the  house,  and  it  was  part  of  the  defenAmt's  case  that  the  plaintiflF 
might  have  had  access  to  them,  but,  notwithstanding  that  fact,  the  Court 
of  King's  Bench  held  that  an  action  for  damages  might,  under  such  cir- 
cumstances, be  sustained  ;  and  the  same  principle  Avill  be  found  applied 
in  the  case  of  Hunt  v.  Moore,  2  Penn.  St.  107 ;  Napier  v.  Elam,  6  Yerg. 
108  ;  Campbell  v.  Whittingham,  5  J.  J.  Marsh.  96  ;  Buford  v.  Caldwell, 
3  Mo.  477. 

It  was  said,  in  perhaps  the  most  recent  English  case  on  this  subject 
(Watson  V.  Poulson,  7  Eng.  L.  &  Eq.  R.  588),  that  "  the  telling  an 
untruth,  knowing  it  to  be  an  untruth,  with  intent  to  induce  a  man  to 
alter  his  condition,  and  his  altering  his  condition  in  consequence, 
whereby  he  sustains  damage,  fulfil  all  the  requisites  to  support  an 
action  for  deceit." 


228  smith's  law  of  contracts. 

rules  of  common  law,  but  under  the  express  provisions 
of  some  statute. 


The  question  then  arises,  how  much  less,  if  anything,  than  this  will 
be  sufficient  for  that  purpose  ? 

The  recent  cases  in  England  (of  Collins  v.  Evans,  5  Q.  B.  (48  E.  C.  L. 
R.)  120;  Moens  v.  Heyworth,  10  M.  &  W.  147;  Taylor  v.  Ashton,  11 
Ibid.  401;  and  Ormrod  v.  Huth,  14  Ibid.  651,  the  doctrine  of  which 
cases  was  approved  in  the  Exchequer  Chamber,  in  Barley  v.  Walford,  9 
Q.  B.  (58  E.  C.  L.  R.)  197,  have  now  decisively  settled,  in  accordance  with 
reason  and  previous  authority,  that  in  order  to  support  an  action  on  the 
case  for  fraudulent  representations,  it  is  not  sufficient  to  show  that  a 
party  made  statements  which  he  did  not  know  to  be  true,  and  which 
were  in  fact  false.  Thus,  in  Evans  v.  Collins  (when  in  the  Court  of 
Queen's  Bench),  the  defendants  having  pleaded  that  they  had  reason- 
able and  probable  cause  to  believe,  and  did  believe,  their  representa- 
tion to  be  true,  viz.,  as  to  the  identity  of  a  particular  person  who  was  to 
be  arrested  on  a  capias,  the  jury  found  for  them  on  that  plea,  and  when 
the  Court  (which  in  the  previous  case  of  Fuller  v.  Wilson,  3  Q.  B.  58 
(reversed  in  the  Exchequer  Chamber,  on  another  point  in  Ibid.  68,  1009), 
had  taken  a  different  view  from  that  entertained  by  the  majority  of  the 
Court  of  Exchequer)  entered  judgment  for  the  plaintiffs,  non  obstante 
veredicto,  that  judgment  was  reversed  by  the  Exchequer  Chamber, 
which  held  that  the  verdict  on  the  issue  raised  by  that  plea  was  mate- 
rial ;  and  the  propriety  of  the  reversal  seems  to  have  been,  in  the  recent 
case  of  Barley  v.  Walford,  9  Q.  B.  (58  E.  C.  L.  R.)  206,  acquiesced  in  by 
Lord  Denman,  who  had  delivered  the  opinion  which  was  reversed. 
"  We  must  admit,"  said  he,  "  the  reasonableness  of  the  doctrine  there  at 
length  laid  down.  For  if  every  untrue  statement  which  produces  danger 
to  another  would  found  an  action  at  law,  a  man  might  sue  his  neighbor 
for  any  mode  of  communicating  erroneous  information,  such,  for  exam- 
ple, as  having  a  conspicuous  clock  too  slow,  since  the  plaintiff  might 
be  thereby  prevented  from  attending  to  some  duty  or  acquiring  some 
benefit.  A  doctrine  creating  legal  responsibility  in  cases  so  numerous 
and  so  free  from  blame  must  be  restrained  within  some  limits."  Hence 
the  result  of  these  authorities  is,  that  in  order  to  make  a  party  liable  on 
the  ground  of  fraud,  there  must  be  fraud  as  distinguished  from  mere 
mistake,  and  to  such  a  conclusion  the  reason  and  weight  of  American 
authority  also  tends  :  Russel  v.  Clark,  7  Cranch  69  ;  Young  v.  Cavell,  8 
8  Johns.  25  ;  Hammatt  v.  Emerson,  27  Me.  309 ;  Weeks  v.  Burton,  7 
Verm.  67  ;  Ewings  v.  Calhoun,  Ibid.  79  ;  Lord  v.  Colley,  6  N.  H.  99  ; 
Allen  i\  Addington,  7  Wend.  10  ;  11  Ibid.  375;  Tyron  v.  Whitemarsh, 
1  Mete.  1  ;  Ball  v.  Sively,  1  Dana  370  ;  Smith  v.  Babcock,  2  W.  &  M. 
246  ;  and  in  a  recent  case,  which  has  appeared  while  these  sheets  are 


ILLEGAL   CONTRACTS.  228 

Now,  with  regard  to  this  class,  I  need  hardly  say  that 
no  contract  prohibited  by  the  exiwess  provisions  of  a 

going  through  the  jiress,  the  Supreme  Court  of  the  United  States  have 
distinctly  affirmed  the  same  doctrine,  after  most  of  the  late  English 
decisions  referred  to  had  been  cited  in  argument.  "  The  gist  of  the 
action,"  said  the  Court,  "  is  fraud  in  the  defendants,  and  damage  to  the 
plaintiff.  Fraud  means  an  intention  to  deceive.  If  there  was  no  such 
intention,  if  the  party  honestly  stated  his  own  opinion,  believing,  at  the 
same  time,  that  he  stated  the  truth,  he  is  not  liable  in  this  form  of 
action,  although  the  representation  turned  out  to  be  entirely  untrue  :" 
Lord  et  al.  v.  Goddard,  13  Howard  198-211. 

The  position  of  a  defendant  may,  however,  be  such,  that  without  the 
utterance  of  what  is  known  to  him  to  be  an  actual  falsehood,  he  may 
still  be  liable  in  an  action  for  deceit,  viz.,  where  he  states  material  facts 
as  of  his  own  hnoioledge  (and  not  as  mere  matter  of  opinion  or  general 
assertion)  about  which  he  has  no  knowledge  whatever.  Here  it  is  held 
that  this  direct  wilful  statement,  in  ignorance  of  the  truth,  is  the  same 
as  the  statement  of  a  known  falsehood,  and  will  constitute  a  scienter  : 
Hazard  v.  Irwin,  18  Pick.  96  ;  Lobdell  v.  Baker,  1  Mete.  193  ;  s.  c.  3 
Ibid.  469  ;  Stone  w.  Denning,  4  Ibid.  158  ;  Medley  v.  Watson,  6  Ibid.  247  ; 
Daniel  v.  Mitchell,  1  Story  172  ;  Dogget  v.  Emerson,  3  Ibid.  700  ;  Mason 
V.  Crosby,  1  W.  &  M.  342  ;  Tuthill  n.  Babcock,  Ibid.  298  ;  Hammett  v. 
Emerson,  27  Me.  308  ;  Gough  v.  St.  John,  16  Wend.  646  ;  Thomas  v. 
M'Cann,  4  B.  Mon.  601  ;  Buford  v.  Caldwell,  3  Mo.  477  ;  Lockridge  v. 
Foster,  4  Scam.  570  ;  M'Corraick  v.  Malin,  5  Blackf.  509  ;  Joice  i\  Say- 
lor,  6  Gill  &  Johns.  54  ;  Munroe  v.  Pritchett,  16  Ala.  485. 

Such  a  course  of  decision  perfectly  accords  with  the  remark  of  Judge 
Story,  that  "  the  affirmation  of  what  one  does  not  know  or  believe  to  he 
true,  is  equally  in  morals  and  law  as  unjustifiable  as  the  affirmation  of 
what  is  known  to  be  positively  false  ;"  while  it  is  not  at  all  inconsistent 
with  the  language  quoted  from  Ormrod  v.  Huth,  that  "if  the  representa- 
tion was  honestly  made,  and  believed  at  the  time  to  be  true  by  the  party 
making  it,  although  not  true  in  point  of  fact,  it  is  not  a  fraudulent  repre- 
sentation." The  question  of  good  faith  is  one,  upon  the  evidence,  for 
the  jury  :  Lord  v.  Colley,  6  N.  II.  99;  Bokee  v.  Walker,  14  Penn.  St. 
139  ;  and  the  plaintiff  can  recover,  either  by  showing  the  positive  state- 
ment and  the  defendant's  knowledge  of  its  falsity,  or  by  showing  the 
positive  statement  and  proving  that  the  defendant  had  not,  and  could 
not  have  had,  any  knowledge  in  the  matter.  Either  of  these  presents  a 
case  of  moral  fraud,  and  both  of  them  are  very  different'  from  that  of  a 
statement  false  indeed  in  fact,  yet  honestly  believed  to  be  true. 

It  would  seem,  however,  that  even  in  the  latter  case,  there  is  no  prin- 
ciple of  law  which  forbids  a  defendant  being  made  liable  in  an  action  on 


228  smith's  law  of  contracts. 

statute  can  be  enforced  in  any  Court  of  law;  but  it  is 
necessary  that  you  should  also  bear  in  mind  that  an 
implied  prohibition  is  equally  fatal  to  its  validity. 

"  Where  a  contract,"  says  Lord  Tenterden,  in  Weth- 
erell  v.  Jones, (s)    "is  expressly  or  by  implication  for- 

[s]  3  B.  &  Ad.  (23  E.  C.  L.  R.)  221. 

the  case  for  negligence,  which  entirely  meets  the  objection  entertained 
by  the  English  editor  to  the  course  adopted  by  the  latest  English  deci- 
sions. Had  the  declaration  in  Taylor  v.  Ashton,  supra,  been  framed 
with  this  view,  the  plaintiffs  might,  upon  the  verdict  of  the  jury,  have 
recovered.  But  i^olenti  non  Jit  injuria,  and  if  the  purchaser  knew  the 
exact  situation  of  the  subject  of  the  representation  at  the  time  it  was 
made  to  him,  he  cannot,  of  course,  recover  damages  on  the  ground  of 
having  been  deceived  by  it. 

Between  the  allegatio  falsi  and  the  suppressio  veri  there  is  only  this 
distinction,  that  the  non-disclosure,  in  order  to  constitute  fraud,  must 
be  of  facts  which  the  seller  was  under  obligation  to  disclose  :  1  Story's 
Eq.  I  207.  Thus,  where  provisions  are  sold  for  home  consumption  which 
are  known  by  the  seller  to  be  unsound,  he  will  be  liable  for  a  deceit, 
upon  proof  of  his  knowledge,  independently  of  any  representation  made 
by  him  :  Van  Bracklin  v.  Fonda,  12  Johns.  468  ;  Emerson  v.  Brigham, 
10  Mass.  119  ;  and  it  may  be  said,  in  general,  that  any  course  of  dealing 
calculated  to  create  a  false  impression  on  the  purchaser,  will  amount  to 
a  fraud  :.  Misner  v.  Granger,  4  Gilm.  69  ;  Young  v.  Burnham,  1  Free- 
man's Ch.  241 ;  Bean  v.  Herrick,  3  Fair.  262;  Early  v.  Garrett,  9  B.  &  C. 
(17  E.  C.  L.  R.)  928  ;  as  where  the  seller  should  state  facts  which  were 
true  in  themselves,  but  so  expressed  as  to  give  the  idea  that  they  con- 
veyed the  w^hole  truth,  while  a  material  fact  is  kept  back  :  Allen  v.  Ad- 
dington,  7  Wend.  10 ;  s.  c.  11  Ibid.  75  ;  Kidney  v.  Stoddart,  7  Mete.  252. 

In  Lord  St.  Leonards'  latest  original  work,  "  The  Law  of  Property  as 
Administered  in  the  House  of  Lords,"  will  be  found  collected  the  late 
important  cases  before  that  tribunal  as  to  the  recission  of  executed  con- 
tracts of  real  estate  on  the  ground  of  fraud.  These  are  also  noticed, 
together  with  the  American  cases  on  the  same  subject,  in  Rawle  on 
Covenants  for  Title,  ch.  xiii.,  while  to'  the  American  annotations  to 
Chandelor  v.  Lopus,  1  Smith's  Lead.  Cases  211,  and  Pasley  v.  Freeman, 
2  Ibid.  146,  the  student  may  be  profitably  referred  upon  the  more  imme- 
diate subject  of  which  this  note  has  attempted  to  treat. 

The  student  will  find  the  authorities  upon  the  subject  of  contracts 
voidable  in  equity  by  reason  of  undue  influence,  in  the  notes  to  the  case 
of  Huguenin  v.  Baseley,  2  White  &  Tudor's  Eq.  Cases  37-75.  Those 
upon  the  subject  of  drunkenness  are  referred  to  infra. — R. 


ILLEGAL    CONTRACTS.  228 

bidden,  no  Court  will  lend  its  assistance  to  give  it 
effect."  Thus,  where  a  ship  which  was  to  sail  from  a 
British  port  in  North  America  to  a  port  in  the  United 
Kingdom  between  the  1st  of  September  and  the  1st  of 
May,  had  part  of  her  cargo  loaded  on  the  deck,  which  is 
forbidden  by  16  &  17  Vict,  c.  107.  ss.  170,  171,  and 
172,  and  the  owners,  knowing  these  things,  insured  the 
cargo  and  the  freight,  the  whole  voyage  was  held  illegal, 
and  the  owners  were  not  permitted  to  recover  the  insur- 
ance, (f)  The  examples  which  most  commonly  occur  in 
practice  of  implied  prohibition  are  in  cases  in  which  an 
*Act  does  not  in  express  terms  enact  that  a  par-  ^900-1 
ticular  thing  shall  not  be  done,  but  imposes  a 
penalty  upon  the  person  doing  it.  In  such  cases  the 
imposition  of  the  penalty  is  invariably  held  to  amount 
to  an  implied  prohibition  of  the  thing  itself  on  the  doing 
of  which  the  penalty  is  to  accrue.  In  Bartlett  v. 
Ymer,{u)  which  is  always  referred  to  as  a  standard 
authority  on  this  subject,  Holt,  C.  J.,  says,  "  Every  con- 
tract made  for  or  about  any  matter  or  thing  which  is 
prohibited  and  made  unlawful  by  statute,  is  a  void  con- 
tract, though  the  statute  does  not  mention  that  it  shall 
be  so,  but  only  inflicts  a  penalty  on  the  offender;  because 
a  penalty  implies  a  prohibition,  though  there  are  no  pro- 
hibitory words  in  the  statute."^ 

(0  Canard  v.  Hyde,  2  E.  &  E.  (105  E.  C.  L.  R.)  1  ;  29  L.  J.  (Q.  B.)  6. 
(h)  Garth.  252  ;  Cope  v.  Rowlands,  2  M.  &  W.  157  ;  Cundell  v.  Daw- 
son, 4  C.  B.  (56  E.  C.  L.  R.)  396. 

^  Vining  v.  Bricker,  14  Ohio  (N.  S.)  331  ;  Bemis  v.  Becker,  1  Kan. 
226.  When  a  contract  to  do  something  which  is  prohibited  by  law  has 
been  executed,  the  party  in  possession  of  the  profits  arising  out  of  the 
unlawful  acts,  will  not  be  allowed  to  set  up  the  illegality  of  the  subject 
matter  of  the  contract  as  a  defence  to  an  action  of  account  thereon  : 
Gilliam  v.  Brown,  43  Miss.  641.  As  to  the  ratification  of  fraudulent 
contract,  see  Pearsall  v.  Chapin,  44  Penn.  St.  9 ;  Cobb  v.  Hatfield,  46 
N.  Y.  533. 
17 


229  smith's  law  of  contracts. 

According  to  this  principle,  where  a  statute  reciting 
the  inconvenience  which  happens  by  watermen  taking 
apprentices  before  they  are  housekeepers,  enacted  that 
it  should  not  be  lawful  for  any  waterman  to  take  or 
keep  any  apprentice  unless  he  should  be  the  occupier  of 
some  house  or  tenement,  wherein  to  lodge  the  said  ap- 
prentice and  himself,  and  that  he  should  keep  such  ap- 
prentice in  the  same  house  or  tenement  wherein  he 
himself  should  lodge,  on  pain  of  forfeiting  £10  for  every 
offence,  the  Court  of  King's  Bench  decided  that  any 
contract  to  take  an  apprentice,  entered  into  by  such 
r*9^01  waterman  not  being  an  occupier  *of  some  house 
or  tenement,  as  required  by  the  Act,  was  pro- 
hibited ;  and,  consequently,  that  a  pauper  who  had 
bound  himself  by  indenture  to  serve  such  a  waterman 
unprovided  with  the  required  accommodation,  and  had 
served  under  it  as  apprentice,  gained  no  settlement  by 
such  binding  and  service.  (:r)  For  the  same  reason,  a 
statute  having  required  that  with  all  coals  delivered  in 
London  above  a  certain  quantity,  the  seller  should  de- 
liver a  certain  ticket,  and  in  case  of  not  delivering  the 
ticket,  should  for  every  offence  forfeit  a  sum  not  ex- 
ceeding <£20,  the  seller  of  a  quantity  of  coals,  who  had 
omitted  to  deliver  a  ticket  with  them  to  his  customer, 
was  held  not  to  be  entitled  to  sue  him  for  the  price.  (^) 
The  statute  6  Anne,  c.  16,  requires  all  brokers  within 
the  City  of  London  to  be  admitted  by  the  Court  of 
Mayor  and  Aldermen,  and  provides  that  if  any  one 
shall  act  as  broker,  not  having  been  so  admitted,  he 
shall  forfeit  to  the  use  of  the  Mayor,  Aldermen,  and 
Citizens  £25  for  every  offence.  (^)     It  has  been  decided 

[x]  King  V.  Inhabitants  of  Gravesend,  3  B.  &  Ad.  (23  E.  C.  L.  R.) 
240. 

[y]  Cundell  v.  Dawson,  4  C.  B.  (56  E.  C.  L.  R.)  376. 

(z)  This  portion  of  6  Anne,  c.  16,  is  repealed  by  57  Geo.  3,  c.  Is.,  s.  2. 
and  a  penalty  of  lOOZ.  substituted. 


ILLEGAL    CONTRACTS.  230 

that  a  broker  not  so  admitted  cannot  recover  his  com- 
mission for  work  done  by  him  as  a  broker.  («)  In  like 
manner,  where  a  railway  company,  ^requiring 
an  Act  of  Parliament,  must,  under  7  &  8  Vict.  '-  ""  -' 
c.  110,  s.  4,  be  provisionally  registered,  and  by  sect.  24 
a  penalty  is  imposed  for  making  any  contract  before 
provisional  registration,  no  action  will  lie  for  work  done 
for  them  before  they  are  so  provisionally  registered.  (^) 
In  the  case  of  a  pawnbroker  who  had  not  made  the 
entries  required  by  the  Pawnbrokers'  Act,  it  was  held 
that  he  had  not  even  a  lien  on  the  goods  whereon  he 
had  advanced  money,  although  the  statute  merely  pro- 
vided that  this  neglect  should  subject  him  to  a  penalty,  (c) 
And  an  agreement  made  between  a  licensed  victualler, 
who  kept  an  hotel,  to  let  the  cellar  in  his  house,  wherein 
another  was  to  retail  liquors  without  any  license,  was 
held  void,  although  the  statute  requiring  the  license 
merely  enacted  that  any  person  who  shall  sell  excise- 
able  liquor  by  retail  without  a  license,  should  forfeit 
from  £d  to  £20. {d)  So,  too,  where  stat.  36  Geo.  III., 
c.  86,  to  prevent  abuses  and  frauds  in  the  packing, 
weight,  and  sale  of  butter,  enacts  in  s.  2,  that  on  every 
vessel  for  packing  butter  the  maker's  name  and  the 
exact  weight  of  the  vessel  shall  be  branded,  and  im- 
poses a  fine  on  the  maker  in  default ;  and  in  s.  3,  enacts 
that  every  dairyman,  farmer,  &c.,  who  shall  pack  any 
butter  for  sale,  shall  pack  the  same  in  vessels  properly 
branded,  and  shall  mark  *his  name  on  different  ^ 
parts  of  the  vessel  therein  described,  and  on  the    '-     '  '^-' 

(a)  Cope  V.  Rowlands,  2  M.  &  W.  149  ;  Smith  v.  Lindo,  27  L.  J.  (C. 
P.)  196;  4  C.  B.  (N.  S.)  (93  E.  0.  L.  II.)  395;  27  L.  J.  (C.  P.)  335;  5 
C.  B.  (N.  S.)  (94  E.  C.  L.  R.)  587,  in  Ex.  Ch. 

(6)  Abbott  V.  Rogers,  24  L.  J.  (C.  P.)  158 ;  16  C.  B.  (81  E.  C.  L.  R.) 
277. 

(c)  Fergusson  v.  Norman,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  76. 

[d)  Ritchie  V.  Smith,  6  C.  B.  (60  E.  C.  L.  R.)  462. 


232  smith's  law  of  contracts. 

butter  contained  in  such  vessel,  on  penalty  of  forfeiting 
for  every  default  <£5  :  it  was  held,  that  a  sale  of  butter 
in  vessels  not  properly  branded  was  prohibited  under 
the  Act,  and  consequently  that  the  contract  of  sale  was 
void,  and  the  plaintiff  in  an  action  for  the  price  of  butter 
sold  by  him  in  such  vessels  could  not  recover,  {e)  The 
cases  decided  upon  this  principle  are  very  numerous, 
but  these  instances  have  been  selected  because,  while 
they  illustrate  the  subject,  they  at  the  same  time  show 
how  very  many  ordinary  affairs,  if  not  transacted  in  the 
manner  prescribed  by  law,  are  forbidden  no  otherwise 
than  by  the  imposition  of  a  penalty.^ 

Before  leaving  this  subject,  it  will  be  convenient  to 
advert  to  a  distinction,  in  cases  of  this  sort,  between 
acts  which  are  prohibited  for  the  public  advantage,  and 
such  as  are  prohibited  for  purposes  of  revenue  ;  for  it 
has  been  sometimes  thought,  that,  in  the  latter  class  of 
instances,  the  only  consequence  is  to  make  the  person 
committing  such  acts  liable  to  the  penalty,  and  not  to 
make  his  contract  unavailable.  (/)  But,  it  may  safely 
be  laid  down,  notwithstanding  some  dicta  apparently  to 
the  contrary,  that,  if  the  contract  be  rendered  illegal,  it 
r*o  o  o-|  can  make  no  difference,  in  point  of  law,  ^whether 
the  statute  which  makes  it  so  had  in  view  the 
protection  of  the  revenue  or  any  other  object.  (^)  The 
sole  qviestionis^„.wliether  the  statute  means  to  prohibit 
the  contract.  Thus,  where  the  25th  and  26th  sections 
of  the  Excise  License  Act,  6  Geo.  IV.,  c.  81,  subject  to 
penalties  any  manufacturer  of,  or  dealer  in,  or  seller  of 

(e)  Forster  v.  Taylor,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  887. 
(/)  Forster  v.  Taylor,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  887  ;  Taylor  v. 
Crowland  Gas  Co.,  23  L.  J.  (Ex.)  254;  10  Ex.  293. 
[g)  Cope  V.  Rowlands,  2  M.  &  W.  149. 

1  See  Buxton  v.  Hamblin,  32  Me.  448  ;  Boutwell  v.  Foster,  24  Verni. 
485 ;  Beman  v.  Tugnot,  5  Sandf.  153. 


ILLEGAL   CONTRACTS.  233 

tobacco,  who  shall  not  have  his  name  painted  on  his 
entered  premises  in  manner  therein  mentioned,  or  who 
shall  manufacture,  deal  in,  retail,  or  sell  tobacco,  with- 
out the  license  required  for  that  purpose,  it  was  con- 
sidered that  these  enactments  do  not  avoid  a  contract  of 
sale  of  tobacco  made  by  a  manufacturer  or  dealer  who 
has  not  complied  with  the  requisites  of  these  sections  : 
their  effect  is  merely  to  impose  a  penalty  on  the  offend- 
ing party  for  the  benefit  of  the  revenue.  "  The  ques- 
tion is,"  said  Alderson,  B. — "Does  the  Legislature  mean 
to  prohibit  the  act  done,  or  not  ?  If  it  does,  whether  it 
be  for  the  purposes  of  revenue  or  otherwise,  then  the 
doing  of  the  act  is  a  breach  of  the  law,  and  no  action 
can  arise  out  of  it.  But  here  the  legislature  has  merely 
said,  that  where  a  party  carries  on  the  trade  or  business 
of  a  dealer  in  or  seller  of  tobacco,  he  shall  be  liable  to 
a  certain  penalty  if  the  house  in  which  he  carries  on 
,the  business  shall  not  have  his  name,  &c.,  painted  on  it, 
in  letters  publicly  visible,  and  legible,  and  at  least  an 
inch  long,  and  '^'so  forth.  He  is  liable  to  the  p:.:9')  i-i 
penalty,  therefore,  by  carrying  on  the  trade  in 
a  house  in  which  these  requisites  are  not  complied  with ; 
and  there  is  no  addition  to  his  criminality  if  he  makes 
fifty  contracts  for  the  sale  of  tobacco  in  such  a  house. 
It  seems  to  me,  therefore,  that  there  is  nothing  in  the 
Act  of  Parliament  to  prohibit  every  act  of  sale,  but  that 
its  only  effect  is,  to  impose  a  penalty  for  the  purpose  of 
the  revenue  on  the  carrying  on  of  the  trade  without 
complying  with  its  requisites." (A) 

Now  the  general  principle  upon  wdiich  all  cases  of 
statutable  illegality  depend,  being  as  above  laid  down, 
it  is  necessary  that  you  should  bear  in  mind  a  practical 
distinction  which  exists  between  this  class  of  contracts — 

•   [h)  Smith  V.  Mawhood,  14  M.  &  W.  452. 


234  smith's  law  of  contracts. 

contracts  I  mean,  forbidden  by  the  express  or  implied 
enactment  of  some  statute — and  another  class,  in  which 
the  contract  itself  does  not  violate  the  statute,  but  some 
incidental  Ulegalltij  occurs  in  carrying  it  into  effect.  In 
these  latter  cases  the  contract  is  good,  and  may  be  made 
the  subject-matter  of  an  action,  notwithstanding  the 
breach  of  the  law  which  has  occurred  in  carrying  it  into 
effect.^ 

The  best  mode  of  explaining  this  is  by  an  example. 
In  Wetherell  v.  Jones,  (z)  a  rectifier  of  spirits  brought 
r*oori    an  action  against  a  confectioner  to  *recover  the 

I     ^00  J 

price  of  spirits  sold  and  delivered  to  him.  The 
defence  relied  upon  was  illegality.  It  appears,  that, 
under  the  Excise  Acts,  a  rectifier  or  distiller,  when  he 
sends  out  spirits,  is  bound  to  send  with  them  a  permit 
truly  specifying  their  strength.  The  plaintiff  had  sent 
a  permit,  but  it  did  not  specify  the  true  strength  -,  and 
the  defendant  relied  on  this  violation  of  the  statute  as- 
an  avoidance  of  the  contract.  But  the  Court  held,  that 
the  illegality  was  not  in  the  contract  to  sell  the  spirits, 
but  in  the  subsequent  act  of  removing  them  without  a 
proper  permit,  and,  therefore,  that  an  action  was  main- 

(/)  3  B.  &  Ad.  (23  E.  C.  L.  R.)  221.  See  also  Smith  v.  Mawhood, 
supra. 

^  The  mere  knowledge  on  the  part  of  the  lender,  that  the  borrower  of 
the  legal  currency  of  another  State  intended  to  use  it  in  the  State  of  New 
York,  where  its  circulation  was  prohibited,  would  not  so  far  vitiate  a  con- 
tract made  in  the  State  where  it  would  be  valid,  as  to  authorize  the  courts 
of  the  latter  State  to  refuse  to  enforce  it:  Merchants'  Bank  v.  Spalding, 
12  Barb.  302.  A.,  not  owning  any  Canton  stock,  employed  B.,  a  broker, 
who  owned  some,  to  sell  for  him  two  hundred  shares  at  sixty-six  dollars 
a  share,  deliverable  at  B.'s  option,  at  any  time  within  thirty  days,  and 
deposited  with  B.  $750  to  protect  him  against  loss.  The  broker  con- 
tracted to  sell  at  that  rate,  and  notified  A.,  and  within  the  term  limited, 
bought  and  delivered  stock  in  execution  of  the  contract.  Held,  that  the 
money  was  advanced  to  be  used  for  an  illegal  purpose,  and  could  not  be 
recovered  back:  Staples  v.  Gould,  5  Sandf.  411. 


ILLEGAL    COx\TRACTS.  235 

tainable  upon  the  contract ;  and  Lord  Tenterden's  judg- 
ment sets  the  distmction  in  a  very  clear  light :  "  We 
are  of  opinion,"  said  his  lordship,  "  that  the  irregularity 
of  the  permit,  though  it  arises  from  the  plaintiff's  own 
fault,  and  is  a  violation  of  the  law  by  him,  does  not  de- 
prive him  of  the  right  of  suing  upon  a  contract  which  is 
in  itself  perfectly  legal,  (/i?)  there  having  been  no  agree- 
ment, express  or  implied,  in  that  contract,  that  the  law 
should  be  violated  by  such  improper  delivery.  Where 
a  contract  which  a  plaintiff  seeks  to  enforce  is  expressly, 
or  by  implication,  forbidden  by  the  statute  or  common 
law.  no  Court  will  lend  its  assistance  to  give  it  effect ; 
and  there  are  numerous  cases  in  the  books  in  which  an 
action  on  a  contract  *has  failed,  because  either  ^ 
the  consideration  for  the  promise  or  the  act  to  L  -^^  J 
be  done  was  illegal,  as  being  against  the  express  provi- 
sions of  the  law,  or  contrary  to  justice,  morality,  and 
sound  policy.  But  where  the  consideration  and  the 
matter  to  be  performed  are  both  legal,  we  are  not  aware 
that  a  plaintiff  has  ever  been  precluded  from  recovering 
by  an  infringement  of  the  law  not  contemplated  by  the 
contract  in  the  performance  of  something  to  be  done  on 
his  part." 

Where,  moreover,  a  contract  is  to  do  a  thing  which 
cannot  be  performed  without  a  violation  of  the  law,  it  is 
void  whether  the  parties  knew  the  law  or  not.  But  in 
order  to  avoid  a  contract  which  can  be  legally  per- 
formed, on  the  ground  that  there  was  an  intention  to 
perform  it  in  an  illegal  manner,  it  is  necessary  to  show 
that  there  was  the  wicked  intention  to  break  the  law.  (/) 
And  a  foreigner  who  sold  and  delivered  goods  abroad  to 

[k]  It  seems,  that,  by  a  subsequent  statute,  he  would  in  this  case  be 
deprived  of  the  right  of  suing  :  2  Will.  4,  c.  16,  ss.  11,  12. 
[l]  Waugh  V.  Morris,  L.  R.  8  Q.  B.  202,  42  L.  J.  (Q.  B.)  57. 


236  smith's  law  of  contracts. 

a  British  subject,  knowing  at  the  time  that  the  buyer 
intended  to  smuggle  them  into  this  country,  was  allowed 
to  recover  the  price  here ;  not  merely  on  the  ground 
that  the  subject  of  a  foreign  country  is  not  bound  to  pay 
allegiance  or  respect  to  the  revenue  laws  of  this,  but 
also  because  the  plaintiff  took  no  actual  part  in  the 
r-fcoo^-i  illegal  act,  and  it  was  not  a  contract  of  which 
the  smuggling  was  an  essential  *part,  for  the 
buyer  might  have  changed  his  mind  the  next  day.(m) 

With  regard  to  the  distinction  of  which  I  have  been 
speaking  \yiz.,  where  an  incidental  illegality  occurs],  I 
will  make  but  one  further  observation,  namely,  that  it 
would  apply  to  cases  of  common  law  as  well  as  statuta- 
ble illegality ;  but  I  have  spoken  of  it  under  the  head 
of  statutable  illegality,  because  I  do  not  remember  any 
decided  case  arising  upon  a  question  as  to  illegality  at 
common  law  which  would  aptly  illustrate  it.  I  can, 
however,  put  such  a  case  without  difficulty.  Suppose, 
for  instance,  A.  employs  B.,  a  builder,  to  repair  the 
front  of  his  house,  and  B.,  in  so  doing,  erects  an  in- 
dictable nuisance  in  the  public  street,  still,  as  the  con- 
tract to  repair  the  house  is  legal,  and  the  erection  of  the 
nuisance  in  so  doing  was  not  contemplated  by  the  agree- 
ment, B.  might  recover  for  the  repairs  which  he  had 
executed.  But  it  would  be  otherwise  if  it  had  been 
made  part  of  the  agreement,  that  the  repairs  should  be 
performed  by  means  of  the  erection  of  the  nuisance ;  for 
there  the  illegality  would  have  entered  into  and  formed 
part  of  the  contract.  (?^)^ 

(m)  Pellecat  v.  Angell,  2  Cr.,  M.  &  R.  311. 

[n]  As  to  contracts  of  which  performance  has  become  illegal  after  the 
making,  see  Brown  v.  Mayor  of  London,  30  L.  J.  (C.  P.)  225 ;  31  L.  J. 
(C.  P.)  280,  in  Ex.  Ch. 

^  The  cases  upon  this  subject  seem  to  require  a  somewhat  fuller  notice. 
In  Rexu.  Somerby,  cited  by  the  lecturer,  a  pauper  apprentice  was  moved. 


ILLEGAL    CONTRACTS.  237 

Now,  sucli  being  the  effect  of  illegality  created  by 
statute,  in  avoidino;  an  ao-reement  tainted  with 
it,  *and  such  being  the  distinction  between  ille-    ^  "^     -^ 

by  reason  of  illness,  from  the  parish  of  Melton  Mowbray,  to  that  of 
Somerby,  where  he  resided  forty  days,  during  which  time  he  was  em- 
ployed in  selling  lottery  tickets,  and  it  was  held  that  he  had  gained  a 
settlement  in  the  latter  parish,  notwithstanding  the  unlawful  act  in  which 
he  had  been  engaged ;  though  it  was  suggested  that  if  the  master  and 
apprentice  had  conspired  together,  and  moved  thither  for  that  purpose, 
the  case  might  have  been  different :  and  this  decision  is  perfectly  recon- 
cilable with  principle  and  with  all  the  authorities.  But  in  Pellecat  v. 
Angell  it  was  held  that  a  foreigner  selling  and  delivering  goods  to  a 
British  subject  could  recover  their  price,  although  he  knew  at  the  time 
of  sale  that  the  buyer  intended  to  smuggle  them  into  England,  and  the 
decision  (which  was  in  accordance  with  the  previous  case  of  Hodgson  r. 
Temple,  5  Taunt.  181,  except  that  that  case  went  farther,  both  parties 
being  English),  to  some  extent,  was  rested  on  the  distinction  taken  in 
Biggs  V.  Lawrence,  3  T.  R.  454,  between  merely  knowing  of  the  illegal 
act,  and  being  a  party  thereto.  That  case  decided  that  where  a  smuggler 
bought  brandy  in  Guernsey,  and  the  vendor  packed  it  in  ankers  in  pre- 
paration for  smuggling,  he  could  not  recover  the  price  of  it,  because  he 
was  aiding  in  the  breach  of  the  revenue  laws,  while  in  Holman  v.  John- 
son, Cowp.  342,  where  the  vendor,  a  foreigner,  knew  of,  but  did  not 
actively  participate  in  the  smuggling,  he  was  held  entitled  to  recover. 
Lord  Abinger,  however,  in  delivering  the  opinion  in  Pellecat  v.  Angell, 
did  not  rely  wholly  on  this  distinction  between  mere  knowledge  and  par- 
ticipation, but  to  a  great  extent  based  his  opinion  upon  the  fact  of  the 
law  which  was  infringed,  being  a  foreign  one  to  the  plaintiff.  "  It  is 
perfectly  clear,"  said  he,  "  that  where  parties  enter  into  a  contract  to 
contravene  the  laws  of  their  own  country,  such  a  contract  is  void  ;  but  it 
is  equally  clear,  from  a  long  series  of  cases,  that  the  subject  of  a  foreign 
country  is  not  bound  to  pay  allegiance  or  respect  to  the  revenue  laws  of 
this,  except  indeed  that  when  he  comes  within  the  act  of  breaking  them 
himself,  he  cannot  recover  here  the  fruits  of  that  illegal  act.  But  there 
is  nothing  illegal  in  merely  knowing  that  the  goods  he  sells  are  to  be 
disposed  of  in  contravention  of  the  fiscal  laws  of  another  country."  Such 
a  course  of  reasoning  has  been,  however,  seriously  questioned  by  Mr. 
Justice  Story  in  his  treatise  on  the  Conflict  of  Laws  (|  254,  note),  who 
asks,  if  a  Frenchman  could  be  allowed  to  recover,  in  England,  the  price 
of  poison  sold  in  France  for  the  avowed  purpose  of  poisoning  the  Queen. 
But  it  may  be  remarked  of  the  English  cases  that  for  some  time,  and 
until  a  very  recent  period,  contracts  connected  with  a  violation  of  the 
revenue  laws,  were  rather  less  severely  construed  than  those  in  violation 


238  smith's  law  of  contracts. 

gality  stipulated  for — contemplated  by  the  contract — 
and  illegality  occurring  incidentally  during  the  course 


of  other  statutory  provisions  (see  some  of  the  cases,  supra,  note  to  page 
*14),  and  Pellecat  v.  Angell,  which  was  decided  in  1835,  may,  so  far  as 
concerns  the  above  reasons,  for  the  decision,  be  classed  with  these  cases. 
But  upon  the  other  ground,  the  line  of  distinction  between  knowledge 
and  participation,  or  rather  between  what  is  and  what  is  not  jmrticipa- 
tion,  is  at  times  a  difficult  one,  and  it  is  certain  that  the  older  cases  have 
sanctioned  recoveries  in  instances  where  they  would  now  perhaps  be 
denied.  Thus,  in  Faikney  v.  Reynous,  4  Burr.  2069,  the  plaintiff  and 
one  Richardson  were  jointly  concerned  in  transactions  forbidden  by  the 
act  "to  prevent  the  infamous  practice  of  stockjobbing"  (7  Geo.  2,  c.  8), 
and  the  plaintiff  having  paid  the  whole  of  the  loss  sustained  by  the 
failure  of  the  operation,  the  Court  (Lord  Mansfield,  C.  J.)  held  that  a 
suit  could  be  maintained  upon  a  bond  given  to  the  plaintiff  by  the  de- 
fendants to  secure  the  repayment  of  Richardson's  proportion  of  the 
loss,  as  the  illegality  did  not  enter  into  this  new  transaction  ;  and  in  the 
subsequent  case  of  Petrie  v.  Hannay,  3  T.  R.  418,  the  facts  and  the  de- 
cision were  the  same  way.  So,  it  was  formerly  held  that  money  lent  to 
pay  a  gambling  debt  might  be  recovered,  though  the  money  lost  could 
not:  Robinson  v.  Bland,  2  Burr.  1077  ;  Barjeau  v.  Walmsley,  Str.  1249; 
Alcinbrook  ?;.  Hall,  2  Wils.  300  ;  and  these  cases  were  approved  in  Far- 
mer V.  Russell,  1  B.  &  P.  299,  though  the  decision  in  that  case  was  on  a 
different  ground,  viz.,  that  one  who  had  received  money  for  the  use  of  a 
party  engaged  in  an  illegal  contract  could  not  defend  in  an  action  for 
money-had  and  received  on  the  ground  of  illegality^  he  being  considered 
in  the  light  of  a  stakeholder  (as  to  which  see  infra).  But  a  class  of  cases 
soon  followed,  in  which  the  authority  of  Faikney  v.  Reynous,  and  Petrie 
V.  Hannay,  was  sometimes  distinguished,  but  more  frequently  questioned: 
Booth  V.  Hodgson,  6  T.  R.  405 ;  Lightfoot  v.  Tennant,  1  B.  &  P.  551  (where 
Eyre,  C.  J.,  put  the  case  of  a  druggist  who  should  sell  arsenic  to  one  who  he 
knew  was  going  to  poison  his  wife  with  it)  :  Aubert  v.  Maze,  Ibid.  371, 
Eldon,  C.  J. ;  Langton  v.  Hughes,  1  M.  &  S.  593  (where  it  was  held  that  one 
who  sold  drugs  to  a  brewer,  knowing  that  he  would  use  them  to  adulterate 
ale  with,  contrary  to  a  statute,  could  not  recover,  though  it  was  not  proved 
that  they  had  been  so  used)  :  Webb  v.  Brook,  3  Taunt.  12 ;  Ex  parte 
Mather,  3  Ves.  373 ;  Ex  parte  Daniel,"  14  Ibid.  192  ;  Gas  Light  Co.  v. 
Turner,  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  324  ;  and  in  Cannan  v.  Brice, 
3  B.  &  Aid.  (5  E.  C.  L.  R.)  179,  two  partners  entered  into  an  illegal 
stockjobbing  transaction,  by  which  a  heavy  loss  was  sustained,  which 
was  paid  by  a  sum  of  money  lent  them  by  Brice,  the  defendant,  who,  as 
the  jury  found,  was  not  a  partner  in  the  stockjobbing  transaction.  In 
consideration  of  this  loan,  which  had  been  only  secured  by  a  bond,  one 


ILLEGAL    CONTRACTS.  238 

of  its  performance,  I  will  proceed,  as  I  did  when  speak- 
ing of  illegality  at  common  law,  to  specify  some  of  the 


of  the  partners  assigned  to  the  defendant  three  cargoes  of  vessels,  and 
soon  after,  a  commission  of  bankruptcy  issued  against  both  of  them,  and 
the  assignees  in  bankruptcy  were  held  entitled  to  recover  the  proceeds 
of  these  cargoes  from  the  defendant.  "  If,"  said  Abbott,  C.  J.,  who  de- 
livered the  opinion  of  the  Court,  "  the  defendant  acted  unlawfully  in 
lending  his  money  to  the  bankrupts,  he  could  not  have  sued  them  for  the 
refcovery  of  payment,  because  no  suit  can  be  maintained  upon  an  unlaw- 
ful act ;  and  if  recovery  could  not  be  enforced  at  law  upon  the  contract 
of  lending,  neither  could  recovery  be  enforced  upon  a  bond  given  for 
the  performance  of  that  contract ;"  nor,  consequently,  upon  the  assign- 
ments which  were  to  secure  the  bond  ;  and  in  M'Kinnell  v.  Robinson,  3 
M.  &  W.  435,  this  case  was  approved,  and  it  was  held,  in  opposition  to 
Alcinbrook  v.  Hall,  that  money  lent  to  play  hazard  with  could  not  be 
recovered  back. 

On  this  side  of  the  Atlantic,  the  authority  of  the  older  and  overruled 
English  cases  has,  however,  been  in  many  instances  recognised  and 
affirmed.  Thus  in  Carson  v.  Rambert,  2  Bay  360,  it  was  held  (on  the 
authority  of  Robinson  v.  Bland),  that  the  value  of  a  horse  lent  to  stake 
at  a  gambling  table  could  be  recovered  by  the  lender,  from  the  borrower. 
But  the  principal  case  is  perhaps  Armstrong  v.  Toler,  2  Wash.  C.  C, 
and  11  Wheat.  258,  where  Armstrong  and  others  contrived,  during  the 
war,  a  plan  to  smuggle  into  the  country  goods  consigned  to  Toler,  and 
on  their  seizure  at  the  port  of  destination,  Toler  became  security  to  the 
government  to  abide  the  event  of  the  suit,  and  delivered  to  Armstrong 
his  proportion  of  the  goods  on  his  promise  of  repayment,  in  case  they 
should  eventually  be  condemned.  The  goods  were  condemned,  and  Toler 
paid  the  amount  of  their  appraised  value,  and  in  suit  brought  by  him 
against  Armstrong,  it  was  -objected  that  the  contract  was  void,  as 
founded  on  an  illegal  consideration ;  but  the  court  below  charged  that 
the  subsequent  independent  contract,  founded  on  a  new  consideration 
(viz.,  that  of  the  delivery  of  the  goods  to  Armstrong),  was  not  contami- 
nated by  the  illegal  importation,  although  it  was  known  to  Toler  when 
the  contract  was  made,  provided  the  latter  had  no  interest  and  partici- 
pation in  the  importation,  and  this  was  left  as  a  fact  to  the  jury,  who 
found  that  he  had  no  such  participation,  and  the  judgment  entered  on 
the  verdict  was  affirmed  on  error,  upon  the  authority  of  Faikney  v.  Rey- 
nous,  and  Petrie  v.  Hannay ;  and  to  the  same  effect  are  Smith  v.  Bar- 
stow,  2  Dougl.  163  ;  Leavitt  v.  Blatchford,  5  Barb.  9  ;  Hook  v.  Gray,  6 
Ibid.  398 ;  Thomas  v.  Brady,  10  Penn.  St.  169  ;  Phalen  v.  Clark,  19  Conn. 
432  (some  of  which  cases  also  recognised  as  authority  those  of  Faikney 
V.  Reynous,  and  Petrie  v.  Hannay) ;  and  in  Cheney  v.  Duke,  10  Gill.  & 


238  smith's  law  of  contracts. 

instances  of  most  ordinary  practical  occurrence,  in  which 
the  legislature  has,  by  express  provision,  rendered  par- 
ticular contracts  illegal  [or  void]. 

Johns.  11,  it  was  thought  by  the  court  to  be  abundantly  settled  that  the 
knowledge  of  the  vendor  that  the  subject  of  the  sale  was  to  be  illegally 
employed,  could  not  defeat  his  recovery  of  the  contract  price ;  and  in  an 
action  brought  for  the  purchase-money  of  a  slave,  bought  for  the  pui'pose 
of  exportation  contrary  to  a  local  statute,  the  plaintiff  was,  notwithstand- 
ing his  knowledge  of  the  unlawful  exportation  was  proved,  held  entitled 
to  recover,  on  the  ground  that  nothing  was  done  by  him  in  furtherance 
of  the  illegal  design. 

In  M'Intyre  v.  Parks,  3  Mete.  208,  a  mortgagee  was,  on  the  authority 
of  Holman  v.  Johnson,  supra,  held  entitled  to  recovery,  though  the  con- 
sideration of  the  mortgage  was  lottery  tickets,  whose  sale  was  prohibited 
in  Massachusetts,  on  the  ground  that  the  contract  was  made  in  New 
York,  where  such  sales  are  valid,  and  notwithstanding  the  mortgagee 
knew  that  they  were  intended  to  be  sold  in  the  former  State,  in  violation 
of  its  laws ;  while  in  Scott  v.  Duffy,  14  Penn.  St.  18,  money  lent  in  New 
Jersey  to  be  bet  upon  the  presidential  election,  was  allowed  to  be  recov- 
ered in  Pennsylvania,  on  the  ground  that  there  was  no  evidence  that 
such  a  bet  was  illegal  in  New  Jersey.  In  Steele  v.  Curie,  4  Dana  387, 
the  following  remarks  were  made  upon  this  subject  by  Robertson,  C.  J., 
after  referring  to  the  different  opinions  which  have  been  expressed : — 

"  We  feel  that  it  may  be  but  proper  to  suggest,  in  passing,  that  we 
would  be  inclined  neither  to  concur  with,  or  to  dissent  from,  the  doctrine 
of  either  party,  in  extenso  and  altogether,  without  limitations  or  qualifi- 
cation ;  but  should  rather  incline  to  the  conclusion  that,  although,  as  we 
are  disposed  to  think,  a  simple  knowledge,  by  a  vendor,  of  the  fact  that 
the  vendee  buys  an  article  for  the  purpose  or  with  an  intention  of  using 
it  in  violation  of  a  public  law,  or  a  principle  of  moral  rectitude,  may,  in 
strong  and  flagrant  cases,  such  as  that  supposed  by  Chief  Justice  Eyre, 
be  a  sufficient  reason  for  withholding,  from  either  party,  the  aid  of  the 
law  for  enforcing  the  contract,  yet  there  may  be  cases  of  a  lighter  shade 
or  less  degree  of  enormity,  in  which  the  same  fact  might  not,  alone,  be 
entitled  to  the  same  effect :  and  in  the  latter  class,  we  would  be  inclined 
to  place  the  beer  case  decided  by  Lord  Ellenborough.  And  the  reason 
why  we  should  be  disposed  to  make  any  discrimination  in  consequence 
of  the  color  or  degree  of  the  transgression  contemplated  by  the  buyer 
and  merely  understood  by  the  seller,  and  why,  also,  we  are  inclined  to 
agree  with  Chief  Justice  Eyre  to  some  extent,  is  just  because  it  does 
seem  to  us,  that  no  one  can  sell  a  commodity,  knowing  that  the  buyer 
intends  to  use  it  for  any  purpose  so  flagitious  as  that  of  murder  or  trea- 
son, or  other  flagrant  violation  of  the  fundamental  rights  of  man  or  of 


ILLEGAL    CONTRACTS.  238 

The  first (o)  example  to  Tvliich  I  shall  advert  arises 
on  contracts  by  way  of  gaming  or  wagering.  The  Acts 
against  Gaming  were  formerly  exceedingly  complex  and 
troublesome ;  but  the  law  has  been  much  simplified  by 
Stat.  8  &  9  Vict.,  c.  109. 

Before  the  passing  of  that  statute  the  first  Act  to  be 
noticed  was  that  of  16  Car.  II.,  c.  7 ;  s.  3  of  which 
enacted  that  if  any  one  should  play  at  any  pastime  or 
game,  by  gaming  or  betting  upon  those  who  game,  and 

(o)  In  former  editions  the  first  example  was  that  of  contracts  void  by 
usury,  but  the  usury  laws  having  been  swept  away  (see  per  Kindersley, 
y.  C,  in  Bond  v.  Bell,  28  L.  J.  (Ch.)  233,  235)  by  17  &  18  Yict.  c.  90, 
which  came  into  effect  on  the  10th  Aug.,  1854,  it  seems  undesirable  to 
mention  them  further  here. 

society,  without  betraying  such  a  degree  of  turpitude  and  recklessness 
as  to  implicate  him,  as  a  voluntary  and  active  participant  in  the  unlawful 
design,  and,  as  therefore,  quantum  in  illo,  willing  and  instigating  a 
crime,  which  it  is  the  civil  duty  of  every  citizen  to  oppose  ;  and  that  the 
like  knowledge  alone,  of  the  buyer's  purpose  of  unlawful  appropriation 
or  use,  would  not  necessarily  lead  to  the  like  deduction,  as  to  the  motive 
or  conduct  of  the  seller,  in  every  case  of  inferior  degree, — as  the  beer 
case ;  the  case  of  a  purchase  of  an  article  with  the  intention  of  again 
making  a  fraudulent  sale  or  use  of  it :  the  case  of  a  loan  of  money  to  a 
person  who  borrows  for  the  purpose  of  re-loaning  to  a  stranger  at  illegal 
interest ;  the  case  of  a  sale  of  merchandise  by  a  wholesale  merchant,  in 
the  regular  course  of  his  business,  to  one  who,  when  he  buys,  intends  to 
smuggle  it  into  a  foreign  port,  without  paying  the  legal  and  accustomed 
duties  ;  and  many  other  cases  of  a  similar  kind,  in  which  a  citizen  may 
be  neutral  without  being  guilty  of  incivism,  or  of  any  intentional  par- 
ticipation in  the  unlawful  design.  In  all  such  cases,  it  would  seem  to 
us,  that  in  a  commercial,  busy,  and  enterprising  age,  the  law  should  not 
attempt  to  establish  a  morality  so  pure,  and  exact,  and  vigilant,  as  that 
which  would  make  it  the  legal  duty  of  every  seller  of  every  vendible 
thing,  to  become  a  casuist  or  censor,  so  far  as  to  make  him  responsible 
for  the  known  motives  of  the  buyer,  and  an  active  and  guilty  co- 
operator  with  him  in  his  contemplated  violation  of  law,  of  principle,  or 
of  justice." 

The  later  English  cases  were,  however,  cited  with  approbation,  and 
followed  in  Perkins  v.  Savage,  18  Wend.  418  ;  Branch  Bank  v.  Croch- 
eron,  5  Ala.  256  ;  "Wooten  v.  Miller,  7  Sm.  &  Marsh.  380,  and  Duncan  v. 
Cox,  6  Blackf.  270.— r. 


238  smith's  law  of  contracts. 

should  lose  more  than  the  sum  of  .£100  on  credit,  he 
should  .not  be  bound  to  pay,  and  any  contract  to  do  so 
should  be  void. 

The  9th  Anne,  c.  14  (the  principal  enactment),  pro- 
vided in  sect.  1,  that  all  securities  for  money  or  any 
psj..;Qq-|  other  valuable  thing  won  by  gaming  or  playing 
*at  cards,  dice,  tables,  bowls,  or  other  game 
whatever,  or  by  betting  on  those  who  game,  or  for 
money  lent  for  such  gaming  or  betting,  or  lent  to 
gamesters  at  the  place  where  they  are  playing,  shall  be 
void'. 

And  the  2d  section  enacted  that  any  person  who 
should  at  a  sitting  lose  the  sum  or  value  of  £10  might 
recover  it  back  again  within  three  months ;  and  if  he 
did  not,  any  other  person  might,  together  with  treble 
the  value — half  for  himself,  and  half  for  the  poor  of  the 
parish. 

Now  you  will  observe  that  under  these  two  Acts 
securities  for  money  lost  at  gaming,  or  by  betting  on 
the  gamesters,  or  for  money  lent  to  them  to  game  with, 
were  illegal. 

And  you  wiU  further  observe  that,  even  if  no  secu- 
rity were  given,  but  the  loser  paid  in  cash,  still,  if  the 
sum  lost  amounted  to  £10,  it  might  be  recovered  back 
again.  (^) 

Now  a  horse-race  is  a  game  within  the  meaning  of 
these  Acts  of  Parliament,  as  you  will  find  laid  down  in 
several  cases  ;(§')  and  therefore,  if  the  law  rested  upon 
these  statutes,  all  losses  above  £10  on  any  such  race 
would  be  recoverable  back  by  the  loser,  and  would  put 

[p]  You  may  consult,  on  the  construction  of  these  Acts,  Sigel  v.  Jebb, 
3  Stark.  (3  E.  C.  L.  R.)  1  ;  Br.ogden  v.  Marriott,  3  Bing.  N.  C.  (32  E.  C. 
L.  R.)  88 ;  and  M'Kinnell  v.  Robinson,  3  M.  &  W.  434. 

{q)  Goodburn  v.  Marley,  Str,  1159  ;  Blaxton  v.  Pye,  2  Wils.  309  ;  and 
Brogdeu  v.  Marriott,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  88. 


ILLEGAL   CONTRACTS.  240 

the  winner  in  danger  of  the  ^penalties  of  the  rH:9iA-| 
statute  of  Anne,  and  securities  for  the  payment 
of  any  such  losses  would  be  void.  But  it  was  thought 
that  horse-racing,  confined  within  due  limits,  had  a  ten- 
dency to  improve  the  breed  of  horses,  and  thereby  pro- 
mote the  interests  of  the  country  at  large.  Acts  of 
Parliaments  were  therefore  passed,  providing  for  this 
particular  object,  and  excepting  such  races,  to  a  certain 
extent,  from  the  provisions  of  the  Gaming  Acts.  This 
was  first  done  by  stat.  13  Geo.  II.,  c.  19,  which  legal- 
ized matches  run  at  Newmarket,  or  Black  Hambleton, 
or  for  the  sum  of  £50  and  upwards.  But  this  statute 
imposed  certain  restrictions  as  to  the  weights  which  the 
horses  were  to  carry,  which  it  seemed  expedient  to  re- 
peal; and  for  that  purpose  was  passed  18  Geo.  II.,  c. 
34,  s.  11,  which,  after  reciting  the  restriction  of  the 
former  statute  as  to  weights,  enacts  that  it  shall  be  law- 
ful for  any  person  to  run  any  match,  or  to  start  and  run 
for  any  plate,  prize,  sum  of  money,  or  other  thing  of 
the  value  of  fifty  pounds  or  upwards,  at  any  weights 
whatever,  in  the  same  manner  as  if  the  Act  of  the 
13th  of  Geo.  II.  had  never  been  made. 

This  Act,  you  will  at  once  see,  was  made  merely  to 
take  away  the  restrictions  with  regard  to  weight,  which 
had  been  imposed  by  the  loth  of  Geo.  II. ;  but  though 
that  was  its  object,  by  one  of  those  strange  accidents 
which  are  so  common  in  the  history  of  law,  the  legality 
of  all  horse-racing  came  to  depend  upon  it. 

^•'In  the  1st  section  of  the  13th  of  Geo.  II.  r::.:94^-|-| 
there  was  a  very  strange  and  unaccountable 
enactment.  It  enacted  that  no  person  should  start 
more  than  one  horse  for  the  same  plate ;  and  that,  if  he 
did,  all  the  horses  entered  by  him,  except  the  first, 
should  be   forfeited,  and   recovered  by  information  or 


241  smith's  law  of  contracts. 

action  at  the  suit  of  a  common  informer.  The  law  re- 
garding racing,  mixed  up  as  it  was  with  the  other 
Gaming  Acts,  being  extremely  complex,  this  portion  of 
it  was  probably  forgotten,  and  certainly  was  not  univer- 
sally acted  upon,  when  suddenly,  in  the  years  1889  and 
1840,  informations  were  filed  for  the  purpose  of  recov- 
ering several  valuable  race-horses  which  had  been  en- 
tered-  by  their  owners,  along  with  other  horses  their 
property,  for  the  same  stakes,  in  total  ignorance  of  the 
prohibition  of  the  Act  of  Parliament. 

As  soon  as  this  was  represented  to  the  Legislature, 
it  interfered  for  the  protection  of  the  defendants,  and 
passed  the  3  Vict.  c.  5;  but  that  Act,  I  presume,  inad- 
vertently, instead  of  repealing  so  much  of  the  13  Geo. 
II.  as  inflicted  penalties,  repealed  that  Act  altogether 
so  far  as  it  related  to  ho7^se-races. 

Now  it  had  always  been  supposed  that  the  legality 
of  horse-races  depended  on  the  13  Geo.  II.,  and  that 
the  Act  of  the  18th  of  the  same  reign  was  a  subsidiary 
Act,  and  had  merely  the  effect  of  taking  off  restrictions 
as  to  weight.     And  many  persons  therefore  thought 

r=''=94-91  ^^^^  ^^^  ^^^  ^^  ^  Vict.  *c.  5,  instead  of  effect- 
ing the  object  of  the  Legislature  by  protecting 
horse-races,  had  repealed  the  only  enactment  by  which 
they  were  supported,  so  that  they  had  been  thrown 
back  into  the  class  of  games  comprised  within  the 
statute  of  Anne,  and  would  be  illegal  if  for  a  larger 
stake  than  <£10.  At  length  the  question  arose,  and  was 
argued  in  a  case  of  Evans  y.  Pratt,  (r)  in  which  the 
Court  of  Common  Pleas  decided  that  the  words  of  the 
11th  section  of  the  18  Geo.  11.  c.  34,  were  large  enough 
to  legalize  all  horse-races  for  stakes  of  £50  and  upwards. 

(r)  11  L.  J.  (C.  P.)  87  ;  3  M.  &  G.  (42  E.  C.  L.  R.)  759  ;  and  see  Ben- 
tinck  V.  Connop,  5  Q.  B.  (48  E.  C.  L.  R.)  693. 


ILLEGAL   CONTRACTS.  242 

Such  races  are  therefore  legal,  and  it  is  settled  (5)  that 
a  race  for  £25  a  side  is  a  race  for  ,£50. 

These  statutes  and  cases  were  reviewed  at  great 
length  in  the  case  of  Applegarth  v.  Colley,(zf)  which 
decides  that  a  horse-race  for  a  sweepstakes  of  £2  each 
is  not  illegal,  although  the  total  amount  subscribed  and 
run  for  amounted  to  less  than  £50,  inasmuch  as  neither 
the  statute  of  Charles  (it  being  a  ready  money  pay- 
ment) nor  the  statute  of  Anne  apply  to  a  "race  for  a 
sum  of  money  not  raised  by  the  parties  themselves 
(that  being,  in  truth,  a  wager),  but  given  by  way  of 
prize  by  a  third  person  desirous  of  encouraging  racing." 

But  though  a  race  for  £50  is  thus  legalized,  a  bet  on 
such  a  race  was  not  so,  for  it  was  decided  (z{)    poiQ-i 
*that  a  person  betting  even  on  a  legal  horse- 
race, is  in  the  same  situation  as  if  he  had  betted  upon 
any  other  game. 

Now  there  is  one  point  not  perhaps  precisely  forming 
part  of,  but  strongly  bearing  on  this  subject,  and  of 
which  I  must  here  warn  you.  When  I  speak  of  the 
statutes  of  Charles  and  Anne  as  rendering  bets  of  a 
o-reater  amount  than  £10  recoverable   back  from  the 

o 

winner,  and  rendering  all  securities  for  bets  void,  you 
must  understand  me  to  speak  of  bets  on  persons  gam- 
ing ;  for  the  words  of  the  former  statute  are,  "  by  play- 
ing at  the  games  or  betting  on  the  players,"  and  of  the 
latter  and  more  important  one,  "  betting  on  the  sides  of 
such  as  game  at  any  of  the  aforesaid  games."  All 
wagers,  therefore,  were  not  affected  by  these  statutes, 
but  only  wagers  upon  games.  Now,  ^foot-race  was  held 
to  be  a  game  within  these  Acts,(:i:)  as  also  was  a  dog- 

(s)  Bidmead  v.  Gale,  4  Burr.  2432.  {t)  10  M.  &  W.  723. 

(m)  Shillito  V.  Theed,  7  Bing.  (20  E.  C.  L.  R.)  405. 
{x)  Lynall  v.  Longbothan,  2  Wils.  36. 
18 


243  smith's  law  of  contracts. 

race.{y)     So  were  cards,  dice,  tennis,  howls,  for  they  are 

mentioned  in  the  Acts;  and  so  was  cricket,  though  not 

specified  ;(;s)  not  that  there  was  anything  illegal  in  these 

amusements  themselves,  but  that  the  law  would  not 

allow  the  winner  of  £10  or  upwards  to  receive  or  retain 

his  winnings,  nor  will  it  allow  any  security  for  any  win- 

r--cAA-\    nine's  at   them   to   be   enforced.     But   as   *to 
[•^244]         ^  .1.1 

wagers  not  made  upon  games  withm  the  mean-   . 

ing  of  these  Acts  of  Parliament,  if  there  was  nothing 
illegal  or  opposed  to  public  policy  in  the  subject-matter  \\ 
\\  of  the  wager,  it  was  held  that  there  was  no  statute    ; 
j  which  affected  its  validity.     This  was  decided  m  the 
'famous  case  of  Good  v.  Elliott, («)  in  which  the  wager, 
whether  a  particular  person  had,  before   a   particular 
day,  bought  a  wagon,  was  held  legal,  and  the  winner 
allowed  to  recover  against  the  loser,  in  an  action,  by 
three  judges  contrary  to  the  opinion  of  Mr.  J.  Buller, 
who  advocated  the  view  which  probably  would  have 
been  most  consistent  with  sound  policy — namely,  that 
the  Courts  should  refuse  to  occupy  their  own  time  and 
that  of  the  public  by  trying  such  questions. 

Such,  then,  being  the  state  of  the  law  as  to  gaming 
and  wagering,  in  1845  stat.  8  &  9  Vict.  c.  109  was 
passed,  of  which  s.  15  repeals  16  Car.  2,  c.  7,  and  so 
much  of  9  Anne,  c.  14,  as  was  not  altered  by  stat.  5  & 
6  Will.  IV.,  c.  41  (which  Act  will  be  referred  to  in  the 
next  lecture) ;  and  s.  18  of  which  enacts  "that  all  con- 
tracts or  agreements,  whether  by. parol  or  in  writing,  by 
way  of  gaming  or  wagering,  shall  be  null  and  void;  and 
that  no  suit  shall  be  brought  or  maintained  in  any  court 
of  law  or  equity  for  recovering  any  sum  of  money  or 

[y)  Daintree  v.  Hutchinson,  10  M.  &  W.  85. 
(2)  Hodson  V.  Terrill,  3  Tyr.  929 ;  1  C.  &  M.  797. 
(a)  3  T.  R.  693;  and  see  Hussey  v.  Crickitt,  3  Camp.  168;  Jones  v. 
Randall,  Cowp.  37 ;  Evans  v.  .Jones,  5  M.  &  W.  82. 


ILLEGAL    CONTRACTS.  245 

*valuable  thing  alleged  to  be  won  upon  any  r^i^c^AKi 
wager,  or  which  shall  have  been  deposited  in 
the  hands  of  any  person  to  abide  the  event  on  which 
any  wager  shall  have  been  made ;  provided  always  that 
this  enactment  shall  not  be  deemed  to  apply  to  any  sub- 
scription or  contribution,  or  agreement  to  subscribe  or 
contribute  for  or  toward  any  plate,  prize,  or  sum  of 
money  to  be  awarded  to  the  winner  or  winners  of  any 
lawful  game,  sport,  pastime,  or  exercise." 

It  is  clear  that  at  common  law,  contracts  by  way  of 
gaming  or  wagering  were  not,  as  such,  unlawful.  (5)^ 

(&)  Thackoorseydass  v.  Dhondmull,  6  Moo.  (P.  C.)  300. 

^  By  the  common  law,  wagers  were  valid :  Good  v.  Elliott,  3  T.  R.  693,  and 
cases  cited  supra;  Campbell  v.  Richardson,  10  Johns.  206;  Haskett  i-. 
Wooton,  1  N.  &  M.  180  ;  Clark  v.  Gibson,  12  N.  H.  386  ;  Ball  v.  Gilbert,  12 
Mete.  397  ;  Scott  v.  Duffy,  14  Penn.  St.  18  ;  except  so  far  as  contrary,  1.  To  ' 
public  policy,  or  2.  To  pi-ivate  characters  or  feelings.  The  former  ground 
renders  invalid  all  wagers  on  the  result  of  an  election :  Allen  v.  Hearn, 
1  T.  R.  56 ;  Ball  v.  Gilbert,  supra;  Rust  v.  Gott,  9  Cow.  169  ;  Wheeler 
.V.  Spencer,  13  Conn.  28  ;  Lloyd  v.  Leisenring,  7  Watts  294 ;  Wagonseller 
V.  Snyder,  Ibid.  343  ;  Wroth  v.  Johfison,  4  liar.  &  M'Hen.  284 ;  Gardner 
V.  Nolan,  3  Harring.  420  ;  Laval  v.  Myers,  1  Bailey  486  ;  Duncan  v.  Cox, 
6  Blackf.  270  ;  on  the  acquittal  or  discharge  of  a  prisoner  :  Evans  v, 
Jones,  6  M.  &  AVels.  77  ;  on  the  result  of  a  prize  fight :  Hunt  v.  Bell,  1 
Bing.  (8  E.  C.  L.  R.)  1  ;  M'Keon  v.  Caherty,  1  Hall  300  ;  in  restraint  of 
marriage  :  Hartley  v.  Price,  10  East  22,  and  the  like.  The  second  ground 
renders  invalid,  wagers  as  to  whether  an  unmarried  woman  would  have 
a  child  by  a  certain  day  :  Ditchurn  v.  Goldsmith,  4  Camp.  132  ;  as  to  the 
sex  of  a  third  person  :  De  Costa  v.  Jones,  Cowp.  729  (which  was  the  well- 
known  case  as  to  the  sex  of  the  Chevalier  D'Eon)  ;  as  to  the  life  of  a 
human  being :  Philips  v.  Jones,  1  Rawle  37  ;  and  perhaps  as  to  the  sol- 
yency  of  a  third  person  :  Thornton  v.  Thackray,  2  Younge  &  Jerv.  156. 

But  as  actions  on  wagers  of  any  kind  were  never  favored  by  the  courts, 
they  have  at  times  gone  so  far  as  to  hold  all  wagers  to  be  invalid  :  Lewis 
V.  Littlefield,  15  Me.  233;  Collamer  v.  Day,  2  Verm.  144;  Edgill  v. 
M'Laughlin,  6  Whart.  179  ;  Thomas  v.  Cronise,  16  Ohio  54  ;  Hart  v.  Hart, 
6  N.  H.  104  ;  Rue  v.  Gist,  1  Strobh.  82 ;  and  in  many  of  the  States  statu- 
tory provisions  exist,  forbidding  wagering  or  gaming  contracts,  to  a 
greater  or  less  extent :  Wheeler  v.  Spencer,  1 5  Conn.  28 ;  Fowler  v.  Van 
Surdam,  1  Denio  537  ;  Fairis  v.  Kirtley,  5  Dana  460. 

Where  a  wager  is  invalid  from  any  of  the  above  causes,  so  long  as-  the 


245  smith's  law  of  contracts. 

Their  illegality  depends  upon  statute  law,  and  after 
numerous  alterations,  it  does  not  seem,  that,  in  the  many 
statutes  on  the  subject  of  gaming,  any  enactment  re- 
mains except  6  Will.  IV.  c.  41,  s.  1,  hereafter  mentioned 


money  remains  in  the  hands  of  the  stakeholder,  it  is  considered  as  being 
still  within  the  control  of  the  parties,  and  the  loser  may  maintain  an 
action  to  recover  his  stake  :  M'Allister  v.  Hoffman,  16  S.  &  R.  148  ; 
M'AUister  v.  Gallagher,  3  P.  R.  464 ;  Tarleton  v.  Baker,  18  Verm.  9  ; 
although  if  the  money  have  been  actually  and  bont  fide  paid  over  by 
the  stakeholder  to  the  vrinner,  no  part  of  it  can  be  recovered  from  the 
latter  by  the  loser,  for  the  case  then  comes  within  the  maxim,  in  pari 
delicto  potior  est  conditio  defendentis :  M'AUister  v.  Hoffman,  supra; 
Speise  v.  M'Uoy,  6  W.  &  S.  485  ;  Danforth  v.  Evans,  16  Verm.  538 ; 
Machin  v.  Moore,  2Gratt.  257  ;  M'Hatton  v.  Bates,  4  Blackf.  63  ;  Thomas 
V.  Crorise,  16  Ohio  54  ;  but  if  the  stakeholder  should  pay  over  the  money 
to  the  winner,  after  notice  from  the  loser  not  to  do  so,  he  would  pay  at 
his  own  risk,  and  being  in  the  position  of  a  mere  agent  whose  authority 
has  been  revoked,  he  would  be  liable  to  the  loser  for  the  amount  of  his 
stake:  Wheeler  v.  Spencer,  supra;  Ivey  v.  Phifer,  11  Ala.  335;  Stacey 
V,  Foss,  1  App.  335  ;  Perkins  v.  Hyde,  6  Yerg.  238.  The  law  was  so  held 
in  New  York  in  Vischer  v.  Yates,  1 1  Johns.  23 ;  but  that  decision  was 
overruled  by  Yates  v.  Foot,  12  Ibid.  1 ;  and  although  the  Revised  Stat- 
utes give  a  remedy  against  a  stakeholder  who  pays  over  to  the  winner 
after  notice  from  the  loser,  yet  the  courts  apply  the  rule  of  Yates  v. 
Foot,  in'  cases  not  brought  exactly  within  the  statute  as  to  form,  time, 
&c.  :  Brush  v.  Keeler,  5  Wend.  250 ;  Fowler  v.  Van  Surdam,  1  Denio 
557. 

The  student  will  find  most  of  these,  as  well  as  many  other  authorities 
upon  the  subject  of  wagers  and  of  wagering  policies,  in  the  note  to  God- 
sail  V.  Boldero,  2  Smith's  Lead.  Gas.  250. — r. 

A  bet  on  an  election  is  void  at  common  law  :  Like  v.  Thompson,  9  Bar- 
bour Sup.  Ct.  Rep.  315  ;  see  also  Bettis  v.  Reynolds,  12  Ired.  344  ;  Ter- 
rell V.  Adams,  23  Miss.  570 ;  Bates  v.  Lancaster,  10  Humph.  134 ;  Bevil 
V.  Hix,  12  B.  Mon.  140. 

As  to  wagers  generally  see  Smith  v.  Brown,  3  Tex.  360  ;  Humphreys 
V.  Magee,  13  Mo.  435;  M'Elroy  v.  Carmichael,  6  Tex.  454;  Parsons  v. 
The  State,  2  Cart.  499.  A  contract  to  purchase  shares  of  stock  without 
the  intention  to  deliver  or  receive  them,  is  a  gaming  contract:  Bruce's 
Appeal,  55  Penn.  St.  294  ;  Ex  parte  Young,  6  Biss.  53.  Contracts  for  the 
future  sale  and  delivery  of  goods  not  in  the  possession  of  the  vendor  are 
not  illegal :  Shipp  v.  Bowen,  25  Ind.  44 ;  Mcllvaine  v.  Egerton,  2  Rob. 
(N.  Y.)  422. 


ILLEGAL   CONTRACTS.  245 


whereby  they  are  rendered  illegal.     This,  however,  is 
by  no  means  clear. 

For  examples  of  contracts  held  void  under  8  &  9  Vict, 
c.  109,  s.  18,  as  being  by  way  of  gaming  and  wagering, 
you  may  refer  to  Grizewood  v.  Blane(c)  and  Rourke  v. 
Short.  (J)  The  first  of  these  cases  shows  that  a  color- 
able contract  for  the  sale  and  purchase  of  railway  shares 
where  neither  party  intends  to  deliver  or  to  accept  the 
shares,  but  merely  to  pay  "  differences"  accord-  vi-.i}Aa-\ 
ing  to  the  rise  *or  fall  of  the  market  is  gaming 
within  the  last-mentioned  enactment.  In  Rourke  v. 
Short,  plaintiff  and  defendant,  while  conversing  as  to 
some  rags  which  plaintiff  proposed  to  sell  and  defendant 
to  purchase,  disputed  as  to  the  price  of  a  former  lot  of 
rags,  plaintiff  asserting  the  price  to  have  been  lower 
than  defendant  asserted  it  to  have  been.  They  agreed 
that  the  question  should  be  referred  to  M.,  a  spirit  mer- 
chant, and  that  whichever  party  was  wrong  should  pay 
M.  for  a  gallon  of  brandy,  and  that,  if  plaintiff  was  right, 
the  price  of  the  lot  now  on  sale  should  be  6s.  per  cwt., 
but  if  defendant  was  right  85.  M.  decided  that  plaintiff 
was  right.  The  latter  sent  the  rags  to  defendant,  but 
defendant  refused  to  accept  them  at  65.,  offering  hs.  The 
Court  held,  that  the  contract  was  by  way  of  wagering 
and  could  not  be  upheld. 

It  is  clear,  under  s.  18,  that  the  lawfulness  of  any 
game  at  which  any  wager  is  made,  does  not  make  the 
wager  lawful,  in  the  sense  of  being  recoverable  in  an 
action  :(e)  but  if  a  party  loses  a  wager,  and  requests 
another  to  pay  It  for  him,  the  loser  is  liable  to  the  party 
so^  paying  ft  for  money  paid  at  his  request.  (/)     But  it 

(cyil  C. "17(73  E.  C.  L.  R. )  538. 

\d)  5  E.  &  B.  (85  E.  C.  L.  R.)  904 ;  25  L.  .J.  (Q.  B.)  196. 
(e)  Parsons  v.  Alexander,  24  L.  J.  (Q.  B.)  277  ;  5  E.  &  B.  (85  E.  C.  L. 
R.)  263. 

(/)  Rosewarne  v.  Billing,  33  L.  .J.  (C.  P.)  55. 


246  smith's  law  of  contracts. 

has  been  held  also,  that  the  amount  of  a  bet  lost  at  a 
horse-race,  and  paid  by  the  loser  into  the  hands  of  a 
r*9471    ^l^i^*^  P^i'ty,  on  the  promise  of  the  latter  to  pay 

it  to  the  winner,  *cannot  be  recovered  by  the 
winner  out  of  the  assets  of  such  third  person,  if  de- 
ceased. (^) 

Where  money  is  deposited  with  a  stakeholder  to 
abide  the  event  of  any  wager,  there  is  nothing,  in  the 
section  under  consideration,  to  prevent  such  a  depositor, 
who  repents  of  his  venture  and  repudiates  the  wager 
hefore  the  happening  of  the  event,  from  recovering  his 
deposit  from  the  stakeholder,  (/i)  After  the  event,  how- 
ever, unless  the  transaction  comes  within  the  protection 
of  the  proviso  with  which  s.  18  concludes,  the  winner 
cannot  recover  his  winnings ;  (^ )  nor,  as  it  seems,  in  the 
absence  of  repudiation  before  the  event,  even  his  own 
deposit.  (^'■)  And  the  loser,  in  the  absence  of  such  re- 
pudiation, cannot  recover  his  stake  from  the  stakeholder 
where  the  transaction  is  within  the  protection  of  the 
proviso.  (/)  Where  the  deposit  comes  within  s.  5  of 
16  &  17  Vict.,  c.  119  (for  the  suppression  of  Betting- 
houses),  it  may  under  that  section  be  recovered  from 
the  receiver  as  money  received  for  the  use  of  the  de- 
positor, {ill) 
r*94-S1        *^  foot-race  comes  within  the  proviso  in  s. 

18 ;   within  which  also  was  held   to  fall  the 

(^)  -Beyer  v.  Adams,  26  L.  J.  (Ch.)  841. 

(/i)  Varney  v.  Hickman,  5  C.  B.  (57  E.  C.  L.  K.)  271  ;  Martin  v.  Hew- 
son,  24  L.  J.  (Ex.)  174  ;  10  Ex.  737. 

(i)  Varney  v.  Hickman,  Parsons  v.  Alexander,  supra ;  Savage  v.  Mad- 
de-r,  36  L.  J.  (Ex.)  178. 

{k)  See  per  Martin,  B.,  in  Savage  v.  Madder,  36  L.  J.  (Ex.)  at  p. 
180. 

[I)  Batty  V.  Marriott,  5  C.  B,  (57  E.  C.  L.  K.)  818.  See,  however,  as 
to  the  right  to  recover  from  the  stakeholder,  where  the  deposit  is  for  an 
illegal  object,  as  a  prize  fight,  ^os^,  Lect.  VII.,  sub  Jin. 

[m)  See  as  to  that  section,  Doggett  v.  Catterms,  34  L.  J.  (C.  P.)  46. 


ILLEGAL    CONTRACTS.  248 

case  where  two  agreed  to  run  such  a  race,  and  each  de- 
posited £10  with  a  third  person,  the  whole  to  be  paid 
to  the  winner.  (?z)  But  the  proviso  does  not  extend  to 
a  case  where  two  persons  ran  their  horses  against  each 
other,  the  winner  to  have  both  horses,  there  being  no 
subscription  or  contribution  towards  any  plate,  prize,  or 
sum  of  money  to  be  awarded  to  the  winner,  (o) 

There  is,  however,  one  class  of  tvagers  which  require 
some  attention.  I  allude  to  wagers  in  the  shape  of 
policies  of  insurance.  An  insurance,  as  you  doubtless 
are  aware,  is  a  contract  by  which,  in  consideration  of  a 
premium,  one  or  more  person  or  persons  assure  another 
person  or  persons  in  a  certain  amount  against  the  hap- 
pening of  a  particular  event ;  for  instance,  the  death  of 
an  individual,  the  loss  of  a  ship,  or  the  destruction  of 
property  by  fire.  These  three  classes  of  policies,  upon 
ships,  lives,  and  fire,  are  of  the  most  common  occurrence  ; 
but  there  is  nothing  to  prevent  insurance  against  other 
events ;  for  instance  in  Carter  v.  Boehm,  {p )  one  of  the 
most  celebrated  cases  in  the  Reports,  Lord  Mansfield, 
and  the  rest  of  the  then  Court  of  King's  Bench,  sup- 
ported a  policy  of  insurance  against  foreign  p.:.^-^^ 
capture  ^effected  in  a  fortress.  Now,  this  con-  ^  '^  ^ 
tract  of  insurance,  though  one  of  the  most  beneficial 
known  to  the  law,  since  it  enables  parties  to  provide 
against  events  which  no  human  skill  can  control,  to 
provide,  for  instance,  against  the  ruin  of  a  family  by 
the  sudden  death  of  a  parent,  the  ruin  of  a  merchant  by 
the  loss  of  his  venture  at  sea,  or  of  a  manufacturer  by 
the  outbreak  of  a  fire  on  his  premises,  though  productive, 
therefore,  of  most  beneficial  consequences  to  society, 

(w)  Batty  V.  Marriott,  5  C.  B.  (57  E.  C.  L.  R.)  818. 

(o)  Coombs  V.  Dibble,  L.  R.,  1  Ex.  248  ;  35  L.  J.  (Ex.)  167. 

[p)  3  Burr.  1905  ;  1  Smith's  L.  C. 


249  smith's  law  of  contracts. 

yet  is  very  liable  to  be  abused,  and  made  an  engine  of 
mere  gambling ;  for  instance,  A.  insures  B.'s  life ;  i.  e., 
he  pays  so  much  a  year,  or  so  much  in  the  lump,  to 
some  one  who  is  to  pay  him  so  much  upon  B.'s  death. 
If  B.  owes  him  money,  and  his  object  is  to  secure  him- 
self, it  is  a  hond  fide  insurance )  but  if  B.  is  a  mere 
stranger,  in  whose  life  he  has  no  interest,  it  is  a  mere 
wager.  In  order  to  prevent  the  contract  of  insurance 
from  being  thus  abused,  the  statute  14  Geo.  III.  c.  48, 
prohibiting  w^ager  policies,  as  they  are  called,  altogether, 
prevents  a  man  from  insuring  an  event  in  which  he  has 
no  interest,  and  where  he  has  an  interest,  but  not  to  the 
extent  insured,  prohibits  him  from  recovering  more  than 
the  amount  of  his  interest.  The  effect  of  this  Act,  in 
a  word,  is  to  invalidate  wagers  framed  in  the  shape  of 
policies  of  insurance — thus,  a  wager  on  the  price  of 
Brazilian  shares  framed  like  a  policy  was  held  in- 
r*9'=im  '^^l^^-(§')  ^^^  Avhere  the  transaction  *would 
not  be  commonly  understood  to  be  a  policy  of 
insurance,  and  therefore  would  not  fall  within  the  words 
of  the  stat.  14  Geo.  III.  c.  48,  taken  in  their  ordinary 
acceptation,  the  Courts  would  probably  not  consider  it 
as  within  this  Act.(r) 

This  Act  applies  to  all  subjects  of  insurance  except 
marine  risk,  and  these  are  provided  for  by  the  insertion 
of  a  similar  prohibition  contained  in  19  Geo.  III.  c.  37, 
enacting,  that  no  insurance  shall  be  made  on  any  ship 
belonging  to  his  Majesty  or  any  of  his  subjects,  or  on 
any  goods,  merchandise,  or  effects,  laden  or  to  be  laden 
on  board  thereof,  interest  or  no  interest,  or  without 
further  proof  of  interest  than  the  policy,  or  by  way  of 
gaming  or  wagering,  or  without  benefit  of  salvage  to  the 

[q)  Paterson  v.  Powell,  9  Bing.  (23  E.  C.  L.  R.)  320. 
(r)  Cook  V.  Field,  15  Q.  B.  (69'E.  C.  L.  R.)  475. 


ILLEGAL    CONTRACTS.  250 

assurers.  And  it  is  decided  that  one  who  has  any  in- 
terest may  be  insured  to  the  extent  of  it,  and  any  one 
may  be  considered  to  have  an  interest,  who  may  be 
injured  by  the  risks  to  which  the  subject-matter  is  ex- 
posed, or  who  but  for  such  risks  would  have  an  advan- 
tage in  the  ordinary  and  probable  course  of  things.  (5) 

It  having  been  enacted  by  the  statute  14 
*Geo.  III.,  c.  48,  that  no  insurance  shall  be  ^  *^  J 
made  by  any  person  on  the  life  of  any  person,  or  on 
any  other  event  whatsoever,  wherein  the  person  for 
whose  use,  benefit,  or  on  whose  account  such  policy 
shall  be  made,  shall  have  no  interest,  and  that  every 
assurance  made  contrary  to  the  intent  thereof  shall  be 
null  and  void,  it  is  important  to  ascertain  what  is  to  be 
considered  as  an  interest  in  the  event  within  the  mean- 
ing of  this  statute.  It  is  clear  that  a  creditor  has  an 
interest  in  the  life  of  his  debtor,  (if)  that  a  trustee  may 
insure  for  the  benefit  of  his  cestui  que  trust, [u)  that  a 
wife  has  an  interest  in  her  husband's  life,  (x)  and  that  a 
man  may  assure  his  own  life,  which  is  the  common  case 
of  every  day's  experience;  but  he  cannot  evade  the 
statute  by  doing  so  with  the  money  of  another,  which 
other  is  to  derive  the  benefit  of  the  assurance,  and  has 
no  interest  in  his  life,  since  so  to  do  would  be  virtually 
enabling  a  person  to  effect  an  assurance  on  an  event 

(s)  Lucena  v.  Craufurd,  2  B.  &  P.  N.  R.  300 ;  Briggs  v.  Merchant 
Traders'  Shipping  Assurance  Association,  13  Q.  B.  (66  E.  C.  L.  R.)  167: 
see  Dalby  v.  India  and  London  Life  Ass.  Co.,  24  L.  J.  (C.  P.)  2  ;  15  C.  B. 
(80  E.  C.  L.  R.)  365,  in  Ex.  Ch.  ;  and  the  note  to  Godsall  v.  Boldero,  2 
Smith  L.  C,  last  ed. 

{t)  Von  Lindenau  v.  Desborough,  3  Car.  &  P.  (14  E.  C.  L.  R.)  353  : 
Cooke  ».  Field,  15  Q.  B.  (69  E.  C.  L.  R.)  460. 

(u)  Tidswell  v.  Ankerstein,  Peake  151  ;  Craufurd  v.  Hunter,  8  T.  R. 
13. 

{x)  Read  v.  Royal  Exchange  Assurance  Company,  Peake  Ad.  C.  70. 


i^51 


SMITH  S    LAW    OF    CONTRACTS. 


wherein  he  has  no  interest.  (^)  It  is  also  required  that 
in  every  policy  on  the  life  of  another  the  name  of  the 
person  really  interested  when  the  policy  is  effected,  or 
1-^:9  r  9-1  for  whose  benefit  it  is  effected,  must  be  *in- 
serted  as  the  person  interested,  and  the  omis- 
sion or  erroneous  statement  of  the  person  interested, 
avoids  the  policy  whether  a  wagering  policy  or  not.(0) 

{y)  Wainwright  v.  Bland,  1  M.  &  W.  32 ;  Shilling  v.  Accidental  Death 
Ass.  Co.,  26  L.  J.  (Ex.)  266 ;  2  H.  &  N.  42 ;  27  L.  J.  (Ex.)  17. 

(z)  14  Geo.  3,  c.  48,  s.  2  ;  Hodson  v.  Observer  Life  Ass.  Society,  26  L. 
J.  (Q.  B.)  303 ;  8  E.  &  B.  (92  E,  C.  L.  R.)  240. 


! 


ILLEGAL    CONTRACTS.  253 


*LECTURE  VII.  [*253] 

THE    lord's    day    ACT. SIMONY. BILLS    OF    EXCHANGE    FOR 

ILLEGAL    CONSIDERATION. RECOVERY    OF    MONEY    PAID    ON 

ILLEGAL    CONTRACTS. 

There  are  some  other  heads  of  statutable  illegality 
which  are  frequently  set  up  as  afibrding  an  answer  to 
any  attempt  to  enforce  contracts  vitiated  by  them.  I 
directed  your  attention,  on  the  last  occasion,  to  the 
defences  which  arise  under  the  laws  enacted  for  pre- 
vention of  gambling;  noticing  the  invalidity  of  certain 
wagers  not  falling  within  the  statutes  against  gaming, 
by  reason  of  the  Acts  of  Parliament  which  prohibit 
wagering  insurances. 

The  first(«)  class' of  cases  to  which  I  will  now  advert, 
consists  of  those  contracts  falling  within  the  operation 
of  the  statute  commonly  known  by  the  name  of  the 
Lord's  Day  Act.  It  is  29  Car.  II.,  c.  7,  and  it  enacts 
that  no  tradesman,  artificer,  workman,  laborer,  or  other 
person  whatever  shall  *do  or  exercise  any  n-t^^Ai 
worldly  labor,  or  business  or  work  of  their  ordi- 
nary callings,  upon  the  Lord's  day  (works  of  necessity 
or  charity  only  excepted),  and  that  every  person  of  the 
age  of  fourteen  years  offending  in  the  premises,  shall 
forfeit  five  shillings.^     The  contracts  prohibited  by  this 

(a)  The  first  class  of  contracts  treated  of  in  this  lecture  in  former  edi- 
tions were  those  falling  within  the  prohibition  of  the  Stockjobbing  Acts  : 
but  the  latter  having  been  repealed  by  23  Vict.  c.  28,  it  seemed  better 
to  omit  all  mention  of  such  contracts  from  the  text,  as  being  no  longer 
amongst  "the  instances  of  most  ordinary  practical  occurrence."  See 
ante,  p.  238. 

^  At  common  law,  judicial  proceedings  alone  seem  to  have  been  forbid- 
den   on  Sunday :  Macalley's  case,  9  Co.  66  b ;  Comyn  v.  Boyer,  Cro. 


254  smith's  law  of  contracts. 

statute  are,  you  will  observe,  not  every  contract  made 
on  Sunday,  but  contracts  made  in  the  exercise  of  a 


Eliz.  485 ;  Strong  v.  Elliott,  8  Cowen  28 ;  Sayles  v.  Smith,  12  Wendell 
59  ;  Boynton  v.  Page,  13  Ibid.  429  ;  Kepner  v.  Keefer,  6  Watts  233  ;  all 
other  transactions,  therefore,  done  on  that  day  depend  as  to  their  ille- 
gality upon  statutory  prohibition.  The  history  of  the  regulations  gradu- 
ally adopted  on  this  subject  was  thus  sketched  by  Gilchrist,  J.,  in  the 
recent  case  of  Allen  v.  Denning,  14  N.  H.  136.  "It  appears,"  said  he, 
"  that  the  ancient  Christians  used  all  days  alike  for  the  hearing  of 
causes,  not  sparing  (as  it  seemeth)  the  Sunday  itself.  One  reason  for 
this  was,  that  they  might  not  imitate  the  heathens,  who  were  supersti- 
tious about  the  observance  of  days;  and  also,  that  by  keeping  their  own 
courts  always  open,  they  might  prevent  Christian  suitors  from  resorting 
to  heathen  courts:  Spelman's  Original  of  the  Terms,  c.  17;  Swan  v. 
Broome,  3  Burr.  1598.  But  the  practice  ceased  with  the  reason  for  it, 
and  in  the  year  510,  a  canon  was  made,  'Quod  nullus  episcopus  vel  infra 
positus  die  dominico  causas  judicareprcesumat.''  This  canon,  with  others 
of  a  similar  character,  was  confirmed  by  William  the  Conqueror  and 
Henry  the  Second,  and  so  became  part  of  the  common  law  of  England. 
But  the  canons  extended  no  farther  than  to  prohibit  judicial  business  on 
Sundays ;  for  fairs,  markets,  sports,  and  pastimes  might  still  take  place 
on  the  Sabbath  :  Comyns  v.  Boyer,  Cro.  Eliz.  485,  decides  that  a  fair  held 
on  Sunday  is  well  enough,  although  by  the  27  Hen.  6,  ch.  5,  a  penalty 
was  inflicted  on  him  who  sold  on  that  day.  The  toleration  of  amuse- 
ments, and  the  existence  of  fairs  in  England  to  a  greater  or  less  degree 
upon  the  Sabbath,  are  readily  accounted  for  by  their  own  accordance 
with  the  practice  of  Roman  Catholic  countries,  among  which  was  Eng- 
land until  the  Reformation  in  the  reign  of  Henry  the  Eighth.  With 
the  spread  of  the  reformed  religion,  and  the  consequent  improvement  in 
civilization,  the  views  and  manners  of  the  people  changed  on  the  subject 
of  the  rational  observance  of  the  Sabbath,  and  in  all  Protestant  commu- 
nities laws  were  enacted  to  secure  it,  varying  in  their  provisions  with  the 
peculiarities  of  the  people.  Pastimes  of  various  kinds  were  prohibited 
by  the  1  Car.  1,  c.  1,  and  by  the  29  Car.  2,  ch.  7.  All  persons  were  pro- 
hibited from  '  doing  or  exercising  any  worldly  labor,  business,  or  work 
of  their  ordinary  calling  upon  the  Lord's  day.'  "  In  the  opinion  of  Lord 
Mansfield  in  Swan  v.  Broome,  3  Burr.  1598,  referred  to  in  the  above  ex- 
tract, the  student  will  find  much  of  the  old  learning  on  this  subject. 

It  is  believed  that  provisions,  more  or  less  similar  to  those  of  the  stat- 
ute of  Charles,  exist  in  all  the  United  States.  In  New  York,  the  statute 
refers  only  to  ''  servile  labor,"  and  "  exposing  goods  for  sale."  In  South 
Carolina,  New  Hampshire,  and  Rhode  Island,  it  has  been  nearly  exactly 
copied.     In  many  of  the  other  States,  such  as  Pennsylvania,  Massachu- 


ILLEGAL    CONTRACTS.  251 

man's  trade  or  ordinary  calling :  thus,  it  has  been  decided 
in  R.  V.  Whitnash,(^)  that  a  contract  made  on  Sunday 

{b)  7  B.  &  C.  (14  E.  C.  L.  R.)  596;  R.  v.  Silvester,  33  L.  J.  (M.  C.) 
79. 

setts,  Maine,  Vermont,  and  Connecticut,  the  provisions  are  more  strict, 
interdicting  all  secular  labor,  vrhether  in  one's  ordinary  calling  or  not. 
Thus,  no  action  can  be  maintained  for  a  deceit  in  the  exchange  of  horses 
on  Sunday  :  Robeson  v.  French,  12  Mete.  24  ;  or  a  breach  of  warranty  : 
Lyon  V.  Strong,  6  Verm.  214 ;  Adams  v.  Harnell,  2  Dougl.  73  ;  nor  for 
any  injury  received  while  travelling  on  that  day,  by  reason  of  a  defective 
highway  (the  journey  not  being  one  of  necessity  or  mercy) :  Boswoi'th  v. 
Swansey,  10  Mete.  365  (though  it  would  be  a  work  of  necessity  to  repair 
the  road  on  Sunday  :  Flagg  v.  Wilby,  4  Cush.  244)  ;  or  on  a  note  given 
on  that  day  :  Kepner  v.  Keefer,  7  Watts  232 ;  and  the  like.  There  was 
a  rather  early  decision  in  Massachusetts  (Greer  v.  Putnam,  10  Mass. 
312),  to  th^  effect  that  a  plea  that  a  note  was  void  because  executed  on 
Sunday,  was  bad  on  demurrer,  but  the  case  proceeded  on  the  ground  that 
the  plea  did  not  state  on  what  part  of  Sunday  the  note  was  made,  the 
act  only  extending  between  midnight  on  Saturday  and  the  sunset  of  the 
next  day  ;  and  though  the  authority  of  the  case  was  more  broadly  applied 
in  Clapp  V.  Smith,  16  Pick.  247,  yet  the  recent  cases  have  explained  the 
decision  on  the  ground  just  stated  :  Bosworth  v.  Swansey,  10  Mete.  364, 
arg.  ;  Robeson  v.  French,  12  Ibid.  24v 

In  Specht  v.  The  Commonwealth,  8  Penn.  St.  313,  it  was  held,  aflBrm- 
ing  the  previous  decision  of  Commonwealth  v.  Wolf,  3  S.  &  R.,  that  the 
Pennsylvania  Lord's  Day  Act  was  not  at  variance  with  the  provision  in 
the  State  constitution,  declaring  the  I'ight  of  freedom  of  conscience  in  re- 
ligious matters,  and  a  conviction,  under  the  act,  of  one  of  the  sect  called 
Seventh  Day  Baptists  was  therefore  sustained,  the  decision  being  based 
upon  the  ground  of  a  day  of  rest  being  necessary  to  the  welfare  of  society, 
and  that  the  mere  prohibition  of  secular  occupation  did  not  interfere  with 
the  right  of  conscience.  The  case  of  Cincinnati  v.  Rice,  13  Ohio  225,  was 
decided  upon  a  clause  in  the  local  statute,  exempting  persons  who  con- 
scientiously kept  holy  the  seventh  day,  and  a  somewhat  similar  provision 
is  found  in  the  Massachusetts  statute. 

But  although  a  bond  may  be  void  because  executed  on  Sunday,  so  that, 
as  a  bond  or  contract,  no  suit  can  be  maintained  upon  it,  yet  in  a  suit 
founded  on  the  previous  liability  of  the  defendant,  the  bond  may  be  re- 
garded as  an  acknowledgment  of  that  liability,  as  there  is  nothing  to 
prevent  a  man  from  acknowledging  the  truth  on  Sunday,  and  conse- 
quently nothing  to  prevent  its  being  given  in  evidence  against  him  :  Lea 
V.  Hopkins,  7  Penn.  St.  492 ;  and  in  any  case  in  which  such  a  defence  is 
set  up,  it  is  necessary  that  the  statute  be  specially  pleaded  :  Fox  v.  Mench, 


254  smith's  law  of  contracts. 

by  a  farmer  for  the  hire  of  a  laborer,  is  valid.  The 
Court  decided,  in  the  first  place,  that  a  farmer  was  not 
a  person  within  the  meaning  of  the  statute  at  all,  for 
that  the  meaning  of  the  words  "tradesman,  artificer, 
workman,  laborer,  or  other  person  tvhatsoever,''  was  to 
prohibit  the  classes  of  persons  named  and  other  persons 
ejusdem  generis,  of  a  like  denomination;  and  they  did 
not  consider  a  farmer  to  be  so.(c)  And,  secondly,  they 
held  that  even  if  the  farmer  were  comprehended  within 
the  class  of  persons  prohibited,  the  hiring  of  the  ser- 
vant could  not  be  considered  as  work  done  in  his  ordi- 
nary  calling,  for,  said  Mr.  J.  Bayley,  "those  things 
which  are  repeated  daily  or  weekly  in  the  course  of 
trade  or  business  are  parts  of  the  ordinary  calling  of  a 
man  exercising  such  trade  or  business;  but  the  hiring 

(c)  R.  2J.  Silvester,  33  L.  J.  (M.  C.)  79. 

3  W.  &  S.  496  ;  unless  of  course  where  local  statutory  or  other  rules  of 
pleading  have  varied  this  general  principle. — r. 

See  Smith  v.  Bean,  15  N.  II.  576;  Hugg  v.  Millbury,  4  Cush.  243; 
Nason  v.  Dinsmore,  34  Me.  391  ;  Goss  v.  Whitney,  24  Verm.  187  ;  Sum- 
ner r.  Jones,  Ibid.  317;  Hooper  v.  Edwards,  18  Ala.  280 ;  Hilton  «. 
Houghton,  35  Me.  143 ;  Stackpole  v.  Symonds,  3  Fost.  229 ;  Rainey  v. 
Capps,  22  Ala.  288  ;  Slade  v.  Arnold,  14  B.  Mon.  287  ;  Murphy  v.  Simp- 
son, Ibid.  419  ;  Hill  v.  Sherwood,  3  Wis.  343 ;  Ilussey  v.  Roquemon,  27 
Ala.  286  ;  Goss  v.  Whitney,  1  Wms.  272.  An  agreement  to  publish  an 
advertisement  in  a  newspaper  issued  on  Sunday  is  void  :  Smith  v,  Wil- 
cox, 25  Barb.  341,  24  New  York  353.  A  promise  to  pay  a  debt  on  Sun- 
day will  not  take  the  case  out  of  the  Statute  of  Limitation  :  Bumgardner 
v.  Taylor,  28  Ala.  687.  The  Court  will. leave  parties  who  swapped  horses 
on  Sunday  without  remedy :  Jordan  v.  Moore,  10  Ind.  386.  When  both 
parties  to  a  contract  violate  the  law  in  making  it,  the  law  will  not  aid 
either  to  set  it  aside  :  Greene  «.  Godfrey,  44  Me.  25.  The  fact  that  a 
contract  is  signed  on  Sunday  does  not  avoid  it,  unless  it  be  delivered  on 
Sunday :  Sherman  v.  Roberts,  1  Grant  261 ;  Merrill  v.  Downes,  41  N.  H. 
72 ;  Smith  v.  Foster,  Ibid.  215  ;  Tucker  v.  Mowry,  12  Mich.  378.  A  con- 
tract not  void  at  common  law  nor  expressly  avoided  by  any  statute,  and 
which  has  been  fully  executed  by  the  parties  binds  them  although  made 
on  a  Sunday.  The  delivery  of  a  deed  on  Sunday  is  sufficient  to  pass  the 
title:  Shuman  v.  Shuman,  27  Penn.  St.  90. 


ILLEGAL   CONTEACTS.  254 

of  a  servant  for  a  year  does  not  come  within  the  mean- 
ing of  those  words." 

*The  former  of  the  two  points  decided  in  this  r*ocK-| 
case  furnishes  a  very  good  exemplification  of 
the  celebrated  rule  of  construction  as  applied  to  statutes, 
namely,  that  where  an  Act  mentions  particular  classes 
of  persons,  and  then  uses  general  words,  such  as  "«// 
others,''  the  general  words  are  restrained  to  persons  of 
the  like  description  with  those  specified.  (J)  And, 
therefore,  where  a  statute  (e)  recites  that  the  Lord's  day 
is  much  broken  and  profaned  by  carriers,  wagoners, 
carters,  wainmen,  butchers,  and  drovers  of  cattle,  and 
then  enacts  that  those  persons  (naming  them)  shall  not 
by  themselves,  or  any  other,  travel  upon  the  Lord's 
day,  and  the  Lord's  Day  Act  contains  the  words  previ- 
ously recited,  it  has  been  determined  that  the  owner  or 
driver  of  a  stage  coach  is  not  included  within  the  words 
"other  person  whatsoever,"  forbidden  to  exercise  his 
calling  on  the  Lord's  day.  The  same  construction  was 
put  upon  the  Lord's  Day  Act  in  a  subsequent  case,  that 
of  Peate  v.  Dicken,(/)  where  it  was  decided,  _/rs^,  that 
an  attorney  was  not  within  the  description  of  persons 
intended  by  the  statute ;  and  secondly,  that  if  he  were, 
an  agreement  made  on  Sunday  to  become  personally  re- 
sponsible for  the  debt  of  a  client,  could  not  be  said  to 
fall  within  his  ordinary  calling. 

*But  perhaps  the  second  point  illustrated  by    r*9;^f>-i 
these  cases  is  put  in  the  clearest  light  by  those 
of  Drury  v.  De  Fontaine (^)  and  Fennell  v.  Ridler,(/«)  in 

(d)  See  Sandiman  v.  Breach,  7  B.  &  C.  (U  E.  C.  L.  R.)  96 :  Queen  v. 
Nevil,  8  Q.  B.  (55  E.  C.  L.  R.)  452.  See  Bishop  v.  Elliott,  24  L.  J. 
(Ex.)  229;  11  Ex.  113. 

(e)  Stat.  3  Car.  1,  c.  1.  (/)  1  Cr.,  M.  Ot  R.  422. 
\g)  1  Taunt.  131. 

{K)  5B.  &C.  (11  E.  C.  L.  R.)  4U6. 


256  smith's  law  of  contracts. 

the  former  of  which  cases  it  was  considered  that  the 
sale  of  a  horse  on  a  Sunday  by  a  person  not  being  a 
horse-dealer,  was  not  void,  such  sale  not  being  within 
the  ordinary  calling  of  the  plaintiff;  and  in  the  second, 
that  a  horse-dealer  could  not  maintain  an  action  upon  a 
contract  for  the  sale  and  warranty  of  a  horse  bought  by 
him  on  a  Sunday,  it  being  obvious  that,  in  doing  so,  he 
was  exercising  the  business  of  his  ordinary  calling.  In 
accordance  with  these  cases,  it  has  been  decided  that 
one  tradesman  giving  another,  on  the  Lord's  day,  a 
guaranty  for  the  faithful  services  of  a  traveller  is  not, 
in  doing  so,  exercising  his  ordinary  calling  :(z)  and  the 
same  conclusion  was  come  to  in  a  still  more  recent  case 
upon  the  subject,  where  it  was  decided  that  a  recruiting 
officer  enlisting  a  soldier  on  a  Sunday  is  not  executing 
his  ordinary  calling  on  the  Lord's  day.(T] 
^T'he  cases  m  which  the  Act  is  most  frequently  sought 
to  be  applied  are  those  of  sales,  of  which  you  may  see 
a  remarkable  instance  in  Simpson  v.  Nichols.  (/)  This 
was  an  action  for  goods  sold  and  delivered.  The  defend- 
r*9f;^-i  ^^t  pleaded  that  they  were  *sold  and  delivered 
by  him  to  the  plaintiff  in  the  way  of  his  trade 
on  a  Sunday,  contrary  to  the  statute;  the  plaintiff  re- 
plied, that,  after  the  sale  and  delivery  of  the  goods,  the 
defendant  kept  them  for  his  own  use  without  returning 
or  offering  to  return  them,  and  had  thereby  become 
liable  to  pay  as  much  as  they  were  worth.  This  repli- 
cation was  considered  to  be  no  answer  at  all  to  the  plea. 
A  case  had  been  cited  in  the-  argument, (m)  where  the 

(i)  Norton  v.  Powell,  4  M.  &  Gr.   (43  E.  C.  L.  R.)  42.     See  Scarfe  v. 
Morgan,  4  M.  &  W.  270. 

(k)  Woltou  V.  Gavin,  16  Q.  B.  (71  E.  C.  L.  R.)  48. 

(l)  3  M.  &  W.  240. 

(w)  Williams  v.  Paul,  6  Ring.  (19  E.  C.  L.  R.)  053. 


ILLEGAL    CONTRACTS.  257 

defendant,  having  purchased  a  heifer  of  a  drover  on  a 
Sunday,  and  having  afterwards  kept  it  and  expressly 
promised  to  pay  for  it,  was  held  liable  by  virtue  of  that 
promise.  But  Mr.  Baron  Parke  observed  (?z)  that,  as 
the  property  in  the  goods  passed  by  delivery,  the  pro- 
mise made  on  the  following  day  to  pay  for  them  could 
not  constitute  any  new  consideration,  and  therefore  he 
doubted  whether  that  case  could  be  supported  in  law. 
•Perhaps,  however,  the  Court  considered  that  case  as 
within  the  rule  mentioned,  ante,  page  188,  and  that  the 
express  promise  there  mentioned  might  revive  the  pre- 
cedent consideration  which  might  have  been  enforced  at 
law  through  the  medium  of  an  implied  promise,  had  not 
the  party  been  exempted  by  the  positive  rule  of  law  for- 
bidding such  a  contract  on  the  Lord's  day.(o) 

Yet,  from  the  application  of  the  Act  to  these  r:::9rc-] 
'''cases  even  there  are  some  exceptions ;  some 
created  by  the  Act  itself,  which  permits  food  to  be  sold 
in  inns  and  cookshops  to  persons  who  cannot  be  other- 
wise provided,  and  for  the  sale  of  milk  at  certain  hours ; 
others  by  10  &  11  Will.  III.  c.  24,  s.  14,  which  legal- 
izes the  sale  of  mackerel  before  and  after  divine  service  ; 
others  by  6  &  7  Will.  IV.  c.  37,  which  allows  haJcers  to 
cany  on  their  business  to  a  certain  extent  and  under 
certain  restrictions,  see  s.  14,  and,  indeed,  even  before 
the  passing  of  that  Act  or  of  the  34  Geo.  III.  c.  61,  on 
the  same  subject,  it  had  been  decided  that  a  baker 
baking  provisions  for  his  customers  was  out  of  the  pur- 
view of  the  Act  altogether,  that  beinsr  a  work  of  neces- 
sity;(jM)  and  there  are  other  exceptions  created  by  other 

(n)  Simpson  v.  Nichols,  5  M.  &  W.  702,  note. 

(o)  See  Scarfe  v.  Morgan,  4  M.  &  W.  270.     See  per  Bosanquct,  J.,  0 
Bing.  (19E,  C.  L.  R.)  655. 

(i>)  See  R.  V.  Cox,  2  Burr.  785  ;  R.  v.  Younger,  5  T.  R.  449. 
19 


258  smith's  law  of  contracts. 

particular  enactments — as,  for  instance,  in  the  case  of 
hacknev  carriaores.^ 

Another  class  of  contracts  falls  within  the  prohibition 
of  the  Acts  aimed  against  simony.  There  are  two  stat- 
utes on  this  subject :  the  31  Eliz.  c.  6,  and  12  Anne, 
c.  12  ;  the  former  of  which  enacts  that  if  any  pair'on, 
for    any    corrupt   consideration,    by    gift    or    promise, 

'  A  contract,  however,  for  the  sale  of  o;oeds  made  on  Sunday,  is  not 
affected  by  the  statute,  unless  it  is  a  complete  contract  on  that  day  :  But- 
ler V.  Lee,  11  Ala.  885;  Adams  «.  Gray,  19  Verm.  358,  where  the  subject 
is  elaborately  examined.  Thus,  if  the  article  was  not  to  be  delivered, 
or  the  price  paid  till  another  day,  the  contract  would  not  be,  under  the 
Statute  of  Frauds,  binding  till  that  was  done  :  Bloxsome  v.  Williams,  3 
B.  &  C.  232;  Beaumont  v.  Brengeri,  5  C.  B.  301.  So  of  a  promissory 
note  written  on  that  day,  but  not  delivered  till  another :  Lovejoy  c. 
Whipple,  18  Verm.  379;  Clough  v.  Davis,  9  N.  H.  500.  And  although 
the  consummation  of  the  transaction  may  occur  on  Sunday,  yet  if  the 
party  seeking  to  enforce  the  rights  growing  therefrom,  had  ceased  all 
his  agency  in  the  matter  before  that  day,  there  will  be  no  invalidation 
as  to  him  ;  as  where  a  case  was  submitted  to  arbitrators  late  on  Satur- 
day night,  who  made  up  their  award  early  on  Sunday  morning,  it  was 
held  that  assumpsit  might  be  maintained  on  the  award,  for  the  plain- 
tiff had  no  voluntary  agency  in  consummating  the  transaction  on  that 
day:  Sargeant  v.  Butts,  21  Verm.  101  ;  Richardson  v.  Kimball,  28  Me. 
475.— R. 

When  a  contract  for  labor  is  entered  into  on  Sunday,  and  the  contract 
is  afterwards  performed  by  the  laborer,  the  promisor  cannot  set  up  the 
illegality  of  the  contract:  Merriwether  v.  Smith,  44  Ga.  541.  The  ven- 
dor of  property  sold  and  delivered  on  Sunday  may  reclaim  such  property 
upon  tendering  to  the  vendee  the  price  received  :  Tuckey  v.  Mowrey,  12 
Mich.  378.  A  note  dated  and  to  take  effect  on  Sunday,  but  made  and 
given  on  a  previous  day  is  valid  :  Staey  v.  Kemp,  97  Mass.  166.  A  con- 
tract not  otherwise  invalid,  but  void  only  because  made  on  Sunday,  is 
susceptible  of  ratification  :  Tucker  v.  W^est,  29  Ark.  386  ;  Love  r.  Wills, 
25  Ind.  503  ;  Smith  v.  Case,  2  Oregon  ,190.  Contra,  Day  v.  M'AlIister, 
15  Gray  433  ;  Ryno  v.  Darby,  20  N.  J.  Eq.  231  ;  Finn  v.  Donahue,  35 
Conn.  216 ;  Pate  v.  Wright,  30  Ind.  476  ;  Bradley  v.  Rea,  103  Mass.  188  ; 
Harrison  v.  Colton,  31  Iowa  16.  See  Pope  v.  Linn,  50  Me.  83  ;  Miller 
V.  Lynch,  38  Miss.  344;  Pike  v.  King,  16  Iowa  49  ;  Finley  v.  Quirk,  9 
Minn.  194;  Foreman  v.  Ahl,  55  Penn.  St.  325;  Pate  v.  Wright,  30  Ind. 
476;  Tillock  v.  Webb,  56  Mo.  100;  Myers  v.  Mainrath,  101  ^ass.  188 ; 
Whilden  v.  Chappel,  8  R.  I.  230. 


ILLEGAL    CONTRACTS.  Zob 

directly  or  indirectly,  shall  present  or  collate  any  per- 
son to  any  ecclesiastical  benefice  or  dignity, — such  pre- 
sentation shall  be  void,  the  presentee  shall  be  incapable 
of  enjo3dng  the  benefice,  and  the  Crown  shall  present 
to  it.(^) 

*The  other  statute  is  that  of  12  Anne,  stat.  r:;:9frq-| 
2,  c.  12,  by  which  enactment,  if  any  person,  for 
money  or  profit,  shall  procure  in  his  own  name,  or  in 
the  name  of  any  other,  the  next  presentation  to  any 
living  ecclesiastical,  and  shall  be  presented  thereupon, 
the  contract  is  declared  to  be  simoniacal,  and  the  pre- 
sentation is  to  devolve  upon  ihe  Crown. 

It  was  decided  on  the  construction  of  the  former  Act. 
that  of  Elizabeth,  very  soon  after  it  passed — that  a  con- 
tract to  purchase  a  living  actually  vacant  at  the  time  of 
the  purchase  w-as  a  simoniacal  contract,  and  avoided  by 
the  operation  of  the  statute.  That  was  taken  for 
granted  in  Baker  v.  Rogers,  (r)  which  was  decided  but 
a  very  short  time  after  the  passing  of  the  Act ;  but 
still,  although,  after  the  statute  of  Elizabeth,  it  was 
admitted,  that  to  contract  for  the  right  to  present  to  a 
church  actually  void,  was  simony,  yet,  it  was  also  held, 
that  it  was  not  simony  to  purchase  the  next  presenta- 
tion at  a  time  when  the  church  was  full,  and  it  was 
therefore  uncertain  when  that  presentation  would 
accrue.  (6')  And  so  the  law  continues  to  be  to  this  day, 
with  a  qualification  introduced  by  the  statute  of  Anne, 
the  nature  of  which  I  am  about  to  explain  to  you. 

The  statute  of  Elizabeth,  and  the  decisions  upon  it, 
had,  as  I  have  just  said,  established  two  points ;  first, 

•  [q]  Goldham  i:  Edwards,  24  L.  J.  (C.  P.)  189;  18  C.  B.  (86  E.  C.  L. 
R.)  389. 

(r)  Cro.  Eliz.  788. 

[s]  See  Cro.  Eliz.  6S5,  Smith  i\  Shelborne. 


259  smith's  law  of  contracts. 

P^fiOl  ^^^^^  ^^^^  right  to  present  to  an  actually  void 
^benefice  could  not  be  purchased ;  secondly, 
that  the  right  of  next  presentation  might  be  so,  pro- 
vided that  the  living  was  full  at  the  time  of  the  contract. 
Certain  clergymen  took  advantage  of  this  state  of  the 
law  to  purchase  next  presentations,  with  the  intention  of 
presenting  themselves  upon  the  occurrence  of  a  vacancy. 
This  practice,  being  considered  highly  indecorous,  the 
statute  of  the  12th  of  Anne  was  passed  to  put  a  stop 
to  it,  and  that  Act  renders  it  illegal  and  simoniacal  on 
the  part  of  a  clergyman  to  purchase  the  next  presenta- 
tion to  a  living  actually  full,  and  to  present  himself, 
leaving  the  right  of  a  layman  to  do  so  just  as  it  stood 
before  under  the  Act  of  Elizabeth. 

The  operation  of  these  two  statutes  was  elaborately 
discussed — first  in  the  King's  Bench,  and  subsequently 
in  the  House  of  Lords — in  the  great  case  of  Fox  v. 
Bishop  of  Chester.  (?f)  In  that  case  the  incumbent  of  a 
living  was  exceedingly  ill,  and  upon  his  death  bed. 
The  proprietor  of  the  advowson  and  another  person 
being  aware  of  this,  and  believing  that  his  death  was 
at  hand,  agreed  for  the  sale  of  the  next  presentation, 
and  in  order  to  carry  the  agreement  into  effect,  executed 
a  deed  a  few  hours  only  before  his  death,  which  pur- 
ported to  convey  the  advowson  to  the  vendee  for  ninety- 
nine  years,  but  contained  a  proviso  for  reconveyance  as 
r*9n  "I  ^^^^  ^s  one  presentation  should  have  been  made. 
*After  the  death  of  the  incumbent,  the  vendee 
under  this  deed  presented  a  clergyman  who  was  in  no 
way  privy  to  the  bargain ;  and,  consequently,  the  only 
question  was  as  to  the  legality  of  the  bargain  itself,  and 
it  was  strongly  urged  that  it  was  void ;  for,  it  was  con- 
tended,  that   the    transaction  was    a  fraud    upon   the 

(0  2  B.  &  C.  (9  E.  C.  L.  R.)  635 ;  and  6  Bing.  (19  E.  C.  L.  R.)  1. 


ILLEGAL   CONTRACTS.  261 

statute  of  Elizabeth,  since,  under  the  circumstances,  the 
living  was  for  every  'practical  purpose  vacant  at  the 
time  of  the  contract,  although  it  was  possible  that  the 
incumbent  might  linger  on  for  a  few  hours  after  the 
delivery  of  the  deed.  And  such  was  the  opinion  of  the 
Court  of  King's  Bench,  who  delivered  their  judgment 
accordingly.  But  it  was  carried  to  the  House  of  Lords, 
and  there  reversed  according  to  the  unanimous  opinion 
of  the  other  judges,  and  of  Lord  Eldon,  who  was  at 
that  time  Chancellor. 

Connected  w^ith,  and,  indeed,  forming  a  part  of  this 
branch  of  the  subject,  are  the  decisions  with  regard  to 
resignation  bonds,  the  history  of  which  is  extremely 
curious. 

It  had  become  a  very  common  practice  when  the 
patron  of  a  living  had  a  son  intended  for  the  church, 
and  the  living  happened  to  become  vacant  during  the 
young  man's  minority,  for  the  patron  to  present  a  cler- 
gyman, who  entered  into  fin  agreement  to  resign  as  soon 
as  the  patron's  son  should  be  of  ag*e  to  hold  the  prefer- 
ment. These  contracts  were  usually  made  by  way  of 
bond,  conditioned  to  resign  on  the  contingency  happen- 
ing, and  which,  from  the  *nature  of  the  trans-  p;:9P.>-| 
action,  acquired  the  name  of  Resignation  Bonds. 
At  first  a  doubt  was  entertained  whether  these  bonds 
did  not  offend  against  the  provisions  of  the  Act  of  Eliza- 
beth, since  the  clergyman  who  executed  such  an  instru- 
ment could  hardly  be  said  to  have  been  presented  gra- 
tuitously, inasmuch  as  he  agreed  to  bind  himself  in  the 
penal  sum  as  a  condition  precedent  to  his  obtaining  the 
preferment,  and  inasmuch  as,  in  the  case  of  his  refusing 
to  resign,  and  allowing  the  penal  sum  to  be  forfeited,  he 
actually  would  have  given  up  that  sum  of  money  for 
the  sake  of  holding  the  living.     However,  in  Johnes  v. 


2G2  smith's  law  of  contracts. 

Lawrence  (w)  first  the  King's  Bench,  and  then  the  Ex- 
chequer Chamber,  decided  that  such  an  instrument  was 
good :  and  the  reason  assigned  for  this  was,  that  a  father 
is  bound  by  nature  to  provide  for  his  son;  and  therefore, 
that,  though  the  clergyman  was  presented  under  an 
agreement,  yet  it  was  not  an  agreement  upon  any  cor- 
rupt consideration,  but  more  resembled  the  case  of  a 
bond  to  resign  in  case  of  non-residence  or  of  taking  any 
other  living,  which  had  both  been  decided  to  be  for  the 
good  of  the  public,  and  free  from  any  objection  on  the 
score  of  simony.  But  still  another  question  remained, 
for  in  course  of  time  it  became  usual  to  exact  from  the 
clergyman  a  bond  conditioned  to  resign — not  on  the 
patron's  son  or  any  other  particular  person  becoming 
p.j.;^po-|  qualified  *to  hold  the  living — but  to  resign 
generally  at  the  request  of  the  patron  whenever 
he  should  think  proper  to  signify  it.  These  bonds, 
which  were  called  General  Resignation  Bonds,  stood,  it 
is  obvious,  on  a  different  footing  from  the  former  ones, 
for  they  reduced  the  clergyman  to  a  state  of  complete 
dependence  on  the  will  and  pleasure  of  the  patron. 
However,  in  Ffytche  v.  The  Bishop  of  London,  (rr) 
which  was  finally  decided  in  the  year  1783,  first  the 
Court  of  Common  Pleas,  and  then  that  of  the  King's 
Bench,  decided  that  such  bonds  were  valid.  But  on  a 
writ  of  error  to  the  House  of  Lords,  that  decision  was 
reversed  by  a  majority  of  lay  peers  voting  against  the 
expressed  opinion  of  a  majority  of  the  judges.  After 
that  period  there  was  for  a  long  time  a  strong  inclina- 
tion on  the  part  of  the  Courts  to  confine  the  authority 
of  that  decision  of  the  peers  to  cases  precisely  similar 
to  itself,  as  you  will  see  from  the  judgments  in  Bagshaw 
?'.  Bosley(^),  Partridge  v.  Whiston,(^)  Newman  v.  New- 

(«)  Cro.  Jac.  248.  (x)  1  East  487. 

(y)  4  T.  R.  78.  \z)  Ibid.  359. 


ILLEGAL    CONTRACTS.  263 

man.  (a)  However,  at  last,  in  the  year  1826,  the  mat- 
ter came  again  before  the  House  of  Lords  in  the  case 
of  Fletcher  v.  Lord  Sondes,  (^)  under  the  following  cir- 
cumstances. 

An  action  was  brought  in  the  King's  Bench  by  Lord 
Sondes  against  the  Reverend  William  Fletcher  upon  a 

bond  of  £12,000.     The  condition  was  not  to    r-.->P<-i 
...  .  I  •'•264] 

"^commit  dilapidations,  and  to  resign  within  a 

month  after  request  the  rectory  of  Kettering,  in  the 
county  of  Northampton,  to  which'  Lord  Sondes  then 
presented  him,  in  order  that  his  Lordship  might  be 
enabled  to  present  one  of  two  younger  brothers,  whose 
names  the  condition  specified.  Upon  this  bond,  judg- 
ment was  allowed  to  go  by  default ;  and  a  writ  of  error 
being  brought  in  the  House  of  Lords,  the  judges  were 
called  on  to  deliver  their  opinions,  which  they  all  did, 
with  the  exception  of  Mr.  J.  Bayley,  Mr.  J.  Holroyd, 
and  Mr.  J.  Littledale.  There  was  a  difference  of  opinion 
amongst  them,  and  they  delivered  their  opinions  there- 
fore seriatim — the  judges  who  thought  the  bond  valid 
being  L.  C.  J.  Best,  Mr.  J.  Burrough,  and  Mr.  J.  Gase- 
lee ;  those  who  thought  it  invalid  being  the  L.  C.  J. 
Abbott,  C.  B.  Alexander,  Mr.  J.  J.  A.  Park,  B.  Garrow, 
B.  Graham,  and  B.  Hullock.  The  Chancellor  agreed 
with  the  majority,  and  the  judgment  of  the  Court  below 
in  favor  of  the  plaintiff  w^as  reversed.  Now,  the  bond 
in  this  case  was  not  a  general  resignation  bond.  It  was 
a  special  one  in  favor  of  the  obligee's  two  brothers. 
And  the  effect  of  this  decision  was,  not  only  to  establish 
the  decision  in  The  Bishop  of  London  v.  Ffytche,  but 
to  overturn  the  decisions  which  had  previously  taken 
place  in  fivor  of  special  resignation  bonds,  and  render 

[a]  4  M.  &  SeL  66. 

(6)  3  Bing.  (11  E.  C.  L.  II.)  501,  in  Dom.  Proo. 


264 


SMITHS   LAW    OF   CONTRACTS. 


[*265] 


all  bonds  conditioned  for  the  resignation  of  a  clergyman 
illegal.     Bnt  as  the  consequences  of  this  would  have 
been  exceedingly  hard  *upon  persons  who  had 
executed  special  resignation  bonds  at  the  time 
when  they  were  looked  upon  as  legal,  the  Archbishop 
of  Canterbury  immediately  brought  in  a  bill,  which  he 
laid  on  the  table  of  the  House  as  soon  as  the  Lords  had 
assented  to  the  Chancellor's  motion  to  reverse  the  judg- 
ment of  the  King's  Bench  in  Fletcher  v.  Lord  Sondes, 
and  which  afterwards  passed  into  law.     It  is  the  7  &  8 
Geo.  IV.  c.  25,  which  confirms  such  bonds  and  contracts 
if  made  before  the  9th  of  April  1827,  the  day  of  the 
decision  in  Fletcher  v.  Lord  Sondes,  for  resignation  in 
favor  of  one,  or  one  of  two  specified  persons.    And  thus 
the   law   continued ;    all  general    bonds  of  resignation 
being  void,  and  special  ones  in  favor  of  one  person,  or 
one  of  two  persons,  good  if  before  April  9th  1827,  and 
void  if  subsequent  to  that  day  ;  until  the  passing  of  the 
9   Geo.  IV.  c.  94,  which  rendered  special  resignation 
1    bonds  and  contracts  entered  into  after  the  passing  of 
I    that  Act  good,  if  in  favor  of  one,  or  one  of  two  persons 
I    standing  in  the  relation  of  uncle,  son,  grandson,  brother, 
\  nephew,  or  grand-nephew  to  the  patron,  by  blood  or 
1  marriage. 

Thus  stands  this  curious  branch  of  law.  Resignation 
contracts  prior  to  April  9th  1827,  being  governed  by 
7  &  8  Geo.  IV.  c.  25,  conjointly  with  the  statutes  of 
Elizabeth  and  Anne ;  between  that  day  and  the  passing 
of  9  Geo.  IV.  c.  94,  by  the  statutes  of  Anne  and  Eliza- 
beth, as  explained  in  Fletcher  v.  Lord  Sondes ; 
and,  subsequently,  by  the  *9  Geo.  IV.  c.  94, 
in  conjunction  with  the  statutes  of  Anne  and  Elizabeth. 
Another  class  of  illegal  contracts,  of  not  unusual  oc- 
currence, consists  of  those  which  are  invalid,  on  the 


[*266] 


ILLEGAL    CONTRACTS.  266 

ground  that  they  amount  to  illegal  attempts  to  charge 
an  ecclesiastical  benefice.  The  obvious  impolicy  of 
allowing  the  provision  made  by  law  for  the  support  of 
the  church  to  be  diverted  to  secular  purposes, .  occa- 
sioned the  enactment  of  the  13  Eliz.  c.  20,  which 
directs  that  all  chargings  of  benefices  other  than  rents 
reserved  upon  the  leases  which  the  law  allows  to  be 
made  should  be  void.  This  Act  was  repealed  by  43 
Geo.  III.  c.  84,  but  revived  again  by  the  repeal  of  the 
latter  Act  by  57  Geo.  III.  c.  99. (c)  The  cases  have 
mostly  arisen  on  contracts  made  for  the  purpose  of 
charging  an  annuity  granted  by  a  clergyman  upon  his 
benefice.  These  contracts  are  held  void,  ((7)  and,  where 
it  appears  on  the  face  of  a  warrant  of  attorney  given  by 
a  clergyman,  that  his  intention  in  executing  it  was  that 
the  benefice  should  be  sequestered  towards  the  liquida- 
tion of  an  annuity  or  other  charge,  the  Courts  will  set 
it  aside  ;(e)  but  they  will  not  do  so  *where  no  r:^9^— i 
inten.tion  to  create  such  a^  charge  appears  on 
the  fiice  of  the  warrant  of  attorney  itself,  though  its 
effects  may  and  probably  will  be  to  occasion  an  execu- 
tion to  issue,  under  which  the  profits  of  the  benefice 
will  be  sequestered.  (/) 

A  contract  may  also  be  illegal  by  contravening  the 

(c)  Shaw  V.  Pritchard,  10  B.  &  C.  (21  E.  C.  L.  R.)  241.  See  1  &  2 
Vict.  c.  106 ;  Hawkins  v.  Gathercole,  6  De  G.,  M.  &  G.  1  ;  24  L.  J.  (Ch.) 
332. 

(d)  See  Mouys  v.  Leake,  8  T.  R.  411 ;  Alchin  v.  Hopkins,  1  Bing.  N. 
C.  (27  E.  C.  L.  R.)  99 ;  Flight  v.  Salter,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  673; 
Walker  v.  Crofts,  20  L.  J.  (Ex.)  257  ;  6  Ex.  1,  s.  c. 

(e)  Saltmarshe  v.  Ilewett,  1  A.  &  E.  (28  E.  C.  L.  R.)  812;  Newland 
V.  Watkins,  9  Bing.  (23  E.  C.  L.  R.)  113.  See  Hawkins  v.  Gathercole, 
24  L.  J.  (Ch.)  332. 

(_/")  Bendry  v.  Price,  7  Dowl.  753  ;  Colebrook  v.  Layton,  4  B.  &  Ad. 
(24  E.  C.  L.  R.)  578  ;  Moore  v.  Ramsdcn,  7  A.  &  E.  (34  E.  C.  L.  R.) 
898  ;  Sloane  v.  Packman,  11  M.  &  AV.  770. 


267  smith's  law  of  contracts. 

very  useful  statutes  which  prescribe  a  uniformity  of 
weights  and  measures  in  the  United  Kingdom.  By  the 
5  Geo.  IV.  c.  74,  s.  23,  a  great  number  of  statutes  upon 
this  subject  were  repealed ;  and  by  this  Act,  and  by  the 
5  &  6  Will.  IV.  c.  63,  the  weights  and  measures  of  the 
country  are  now  regulated.  By  sect.  6  of  the  latter 
Act  the  Winchester  bushel,  the  Scotch  ell,  and  all  local 
or  customary  measures  are  abolished,  and  every  person 
who  shall  sell  by  any  denomination  of  measure,  other 
than  one  of  the  imperial  measures  or  some  multiple  or 
aliquot  part  thereof,  shall  be  liable  to  a  penalty  not  ex- 
ceeding 40^.  for  every  sale  :{g)  provided  that  this  Act 
shall  not  prevent  the  sale  of  any  articles  in  any  vessel, 
where  such  vessel  is  not  represented  as  containing  any 
amount  of  imperial  measure,  or  of  any  fixed,  local  or 
customary  measure  theretofore  in  use.  By  sect.  7, 
heaped  measure  is  abolished,  and  all  bargains,  sales,  and 
r*9r9"l  ^contracts  which  shall  be  made  by  it  are  ren- 
dered null  and  void ;  and  articles  which  before 
this  Act  was  usually  sold  by  it,  may  be  sold  by  a  meas- 
ure filled  as  nearly  to  the  level  of  the  brim  as  their  size 
and  shape  will  admit,  or  by  weight,  s.  8.  By  sect.  9, 
coals  must  be  sold  by  weight,  and  all  articles,  except 
the  precious  metals  and  precious  stones  and  drugs,  must 
be  sold  by  Avoirdupois  weight,  but  the  precious  metals 
and  precious  stones  may  be  sold  by  Troy  weight,  (^) 
and  drugs,  when  sold  by  retail,  by  Apothecaries' weight — 
s.  10.  By  sect.  11,  the  stone  is  to  consist  of  14  pounds, 
the  hundred  weight  of  8  stones,  and  the  ton  of  20  hun- 
dred  weights.     It  has  been  decided  that  this  statute 

[g)  See  27  &  28  Vict.  c.  117,  to  render  permissive  the  use  of  the 
metric  system. 

(A)  See  16  &  17  Vict.  c.  29,  for  regulating  the  weights  used  in  sales 
of  bullion. 


ILLEGAL    CONTRACTS.  268 

does  not  apply  to  contracts  to  be  performed  abroad, (z) 
but  only  to  contracts  where  the  goods  are  to  be  weighed 
or  measured  in  this  country ;  and  it  has  been  held,  that, 
even  in  this  country,  a  contract  for  the  sale  of  iron  by 
the  ton  long  weight,  consisting  of  20  hundred  weights 
of  120  pounds  each,  is  not  illegal,  it  being  considered 
that  the  object  of  the  statute  to  be  collected  from  it  was 
to  abolish  local  and  customary  weights  and  measures 
and  to  establish  uniformity,  and,  consequently,  did  not 
apply  to  a  weight  like  the  long  hundred,  which  was 
not  a  local  or  customary  weight,  but  in  use  all  over  the 
country.  (X") 

*In  some,  cases,  also,  joint-stock  companies    rH^opqi 
are  not  able  to  make  a  legal  contract ;  but  this 
will  be  treated  of  hereafter. 

I  have  now  touched  upon  the  classes  of  contracts  in- 
validated by  express  enactment,  which  are  of  most  fre- 
quent practical  occurrence,  and  it  remains  to  mention 
one  point,  also  arising  from  a  late  statute,  which  has 
done  away  with  a  distinction  which  was  formerly  found 
an  exceedingly  troublesome  one,  and  frequently  very 
unjust  in  its  operation. 

You  are  probably  aware  that  the  general  rule  of  the 
law  of  England  is,  that  a  contract  is  not  assignahle  ;  that 
is,  that  a  man  who  has  entered  into  a  contract  cannot 
transfer  the  benefit  of  that  contract  to  another  person,  so 
as  to  put  that  other  person  in  his  own  place,  and  entitle 
him  to  maintain  an  action  upon  it  in  case  of  its  non-per- 
formance. (/)     But  you  are   probably  also   aware  that 

(?•)  Rosseter  v.  Cahlmann,  8  Ex.  361  ;  22  L.  J.  (Ex.)  128. 

[k)  Jones  V.  Giles,  23  L.J.  (Ex.)  292  ;  10  Ex.  119,  s.  c. ;  24  L.  J.  (Ex.) 
259;  11  Ex.  393,  Ex.  Ch. 

(V)  But  see  36  &  37  Vict.  c.  66  (Supreme  Court  of  Judicature  Act, 
1873),  s.  25,  sub-sec.  6,  as  to  the  alteration  of  this  rule,  when  that  Act 
comes  into  operation,  viz.,  on  November  2d,  1874. 


269  smith's  law  of  contracts. 

there  are  some  contracts  which,  by  the  operation  either 
of  a  statute  or  of  some  peculiar  rule  of  commercial  law, 
are  exempted  from  the  operation  of  the  above  rule,  and 
rendered  transferable  in  the  same  way  as  any  other  pro- 
perty from  man  to  man.^ 

Such  are  bills  of  exchange,  which,  by  the  law  mer- 
PSTOI  ^^^^^^  ^^'^  transferable  by  indorsement,  if  *pay- 
able  to  order ;  by  delivery,  if  payable  to  bearer. 
Such,  too,  are  promissory  notes,  which,  by  the  statute 
3  &  4  Anne,  c.  9.  are  placed  on  the  same  footing  as  bills 
of  exchange.  Now,  where  some  one  of  these  instruments 
had  been  made  upon  an  illegal  consideration  :  where,  for 
instance,  a  bill  of  exchange  was  accepted  for  an  illegal 
gambling  debt,  it  is  obvious  that  no  action  could  be 
maintained  between  the  original  parties  to  it ;  for  in- 
stance, in  the  case  I  have  just  put,  by  the  drawer  of 
such  a  bill  against  the  acceptor  of  it ;  for,  as  between 
them,  it  is  the  common  case  :  they  both  knew  of  the 
illegality,  and  nevertheless,  with  their  eyes  open,  made 
it  the  consideration  of  their  contract.  But  where  the 
instrument  had  gone  out  of  the  hands  of  the  person  to 
whom  it  was  originally  given,  and  had  got  into  the  hands 
of  some  third  person,  the  case  is  very  much  altered ;  for 
he  might  not,  and  probably  did  not  know  of  any  ille- 
gality ;  and  if  he  did  not,  it  was  hard  that  he  should  lose 

^  Corporation  bonds  payable  to  bearer,  though  under  seal,  have  the 
qualities  of  negotiable  instruments  :  Mercer  v.  Hacket,  1  Wall.  (S.  C.) 
83  ;  Gelpeke  v.  Dubuque,  Ibid.  175  ;  Meyer  v.  Muscatine,  Ibid.  384  : 
Connecticut  Ins.  Co.  v.  Cleveland  R.  Jl.  Co.,  41  Barb.  9 ;  New  Albany 
Plank  Road  Co.  v.  Smith,  23  Ind.  353  ;  Langston  v.  S.  C.  R.  R.  Co.,  25 
C.  248.  Claims  for  property,  and  for  tort  done  to  property,  are  assign- 
able, and  such  assignment  may  be  by  parol :  Jordan  v.  Gillen,  44  N.  H. 
424  ;  Lazard  v.  Wheeler,  22  Cal.  139.  The  assignment  of  a  debt  may  be 
by  parol,  or  may  be  inferred  from  the  conduct  and  acts  of  the  parties : 
Spain  V.  Hamilton,  1  AVall.  (S.  C.)  604.  A  right  of  entry  for  condition 
broken  is  not  assignable  :   Warner  v.  Bennett,  31  Conn.  468. 


ILLEGAL    CONTRACTS.  270 

the  benefit  of  that  for  which  he  had  paid,  in  consequence 
of  the  illegal  act  of  other  persons,  in  which  he  did  not 
participate,  and  of  which  he  did  not  know.  For  instance, 
to  take  again  the  same  example  :  A.  loses  £100  to  B.  at 
whist,  and  accepts  a  bill  for  the  amount.  If  B.  after- 
wards sues  A.  on  that  bill,  and  A.  pleads  the  illegality, 
this,  though  not  in  conformity  with  the  principles  of 
honor,  cannot  be  said  to  be  a  hardship  upon  B.,  for  he 
knew  when  he  sat  down  to  play,  and  he  knew  when  he 
drew  the  bill,  that  he  '^'could  not  enforce  such  a  r:i:9r--|-i 
demand.  But  suppose,  instead  of  himself  suing 
on  the  acceptance,  he  had  procured  C.  to  discount  it, 
and  had  indorsed  it  to  him,  and  C.  had  paid  full  value 
for  it,  and  knew  nothing  of  the  gaming  debt  for  which 
it  was  given,  in  such  a  case  it  would  be  an  exceedingly 
hard  thing  indeed  to  prevent  C.  from  recovering  the 
amount  from  the  acceptor.  Yet,  notwithstanding  this, 
there  were  till  lately  several  cases  in  which  he  would 
have  been  precluded  from  doing  so.^ 

The  law  stood  thus  : — Whenever  illegality  depended 
on  the  common  law,  or  on  an  Act  of  Parliament  which 
did  not  in  express  terms  render  the  security  void,  there 
the  Courts  applied  the  rule  which  reason  and  justice 
dictate,  and  held  that  the  person  who  had  given  value 
for  the  security,  and  had  taken  it  without  notice  that  it 
was  affected  by  an  illegality,  was  entitled  to  recover 
upon  it.  There  were,  however,  some  cases  in  w^iich, 
by  the  positive  enactments  of  particular  statutes,  the 


'  These  cases  were  Bo^er  v.  Bampton,  2  Str.  1155;  Peacock  v.  Rhodes, 
Dougl.  036  :  Lowe  v.  Walker,  Ibid.  736  :  Ackland  v.  Pearce,  2  Campb. 
599.  The  words  of  the  usury  and  gaming  acts  were  thought  too  strong 
to  be  got  over,  and  the  law  has  been  held  the  same  way'under  similar 
statutes  on  this  side  of  the  Atlantic  :  Unger  v.  Boas,  13  Penn.  St.  602  ; 
Lucas  V.  Waul,  13  Sm.  &  Marsh.  157. — R. 


271  smith's  law  of  contracts. 

security  was  rendered  void.  Such,  for  instance,  was  an 
acceptance  of  the  description  I  have  just  supposed,  given 
for  a  gaming  debt.  Such,  also,  at  one  period,  was  a  bill 
or  note  given  upon  a  usurious  consideration.  But  the 
hardship  in  the  case  of  usury  was  found  so  great,  that  a 
particular  Act  (58  Geo.  III.  c.  93),  was  passed  in  order 
to  put  an  end  to  it.  And  at  length,  stat.  5  &  6  Will. 
IV.  c.  41,  has  altogether  abolished  the  distinction  and 
the  grievances  which  it  occasioned,  by  enacting  that 
r*9791  *such  instruments  shall  be  no  longer  void,  but 
shall  be  deemed  and  taken  to  have  been  given 
for  an  illegal  consideraiion  ;  the  consequence  of  which  is, 
that  they  are  still  void  as  between  the  original  parties, 
and  also  as  against  all  persons  who  have  taken  them 
with  the  notice  of  illegality,  or  after  they  had  become 
overdue,  or  without  giving  value  for  them  ;  but  good  in 
the  hands  of  every  person  who  has  given  value,  and 
taken  the  instrument,  before  it  was  due  and  hond  fide} 

'  The  provisions  of  the  statute  of  58  Geo.  III.  c.  98,  were  adopted  in 
the  New  York  Revised  Statutes,  v.  1,  772,  \  5,  under  which  act  it  has 
been  obviously  held,  that  as  soon  as  the  defendant  ghows  there  has  been 
usury  between  the  prior  parties,  he  casts  on  the  plaintiff  the  burden  of 
proving  that  he  is  a  holder  for  value  :  AVyatt  v.  Campbell,  M.  &  M.  80  : 
Hackley  v.  Sprague,  10  Wend.  113;  Young  v.  Berkeley,  2  N.  H.  410: 
Williams  v.  Little,  11  Ibid.  66  ;  Ilenrick  r.  Andrews,  9  Port.  10;  as  is 
the  case  in  every  instance  where  fraud,  duress,  or  illegality  is  shown  be- 
tween the  prior  parties  :  Monroe  v.  Cooper,  5  Pick.  412  ;  Valletr.  Parker, 
6  Wend.  615 ;  Beltzhoover  v.  Blackstock,  3  Watts  26 ;  and  it  seems  at  one 
time  to  have  been  thought  that  if  the  defendant  could  prove  want  ov  failure 
(not  an  illegality)  of  consideration  between  the  prior  parties,  this  would 
throw  on  the  plaintiff  the  burden  of  proving  himself  a  holder  for  value: 
Grant  v.  Vaughan,  3  Burr.  1516  ;  Patterson  v.  Ilardacre,  4  Taunt.  141;  De 
la  Ohaumette  v.  Bank  of  England,  2  B.  &  C.  (9  E.  C.  L.  R.)  208 ;  Heath  v. 
Sansom,  2.  B.  &  Ad.  (22  E.  C.  L.  R.)  291  ;  but  in  Whitaker  v.  Edmunds, 
1  M.  &.  Rob.  366,  Patterson,  J.,  said,  "  Since  the  decision  in  Heath  v.  San- 
som (2  B.  »k  Ad.  291),  the  consideration  of  the  judges  has  been  a  good  deal 
called  to  the  subject,  and  the  prevalent  opinion  amongst  them  is,  that  the 
courts  have  of  late  gone  too  far  in  restricting  the  negotiability  of  bills  and 


ILLEGAL    CONTRACTS.  272 

Although,  since  the  passing  of  this  statute,  many 
alterations  have  been  made  in  the  law  of  gaming,  yet 
the  stat.  5  &  6  Will.  IV.  c.  41,  is  still  in  force,  (w^)  and 
the  law  is  still  as  just  described. 

There  is  one  other  point  Avhich  I  will  notice  before 
altogether  leaving  the  head  of  illegality.  I  have  hith- 
erto spoken  of  illegality  as  avoiding  a  contract,  and  of 
course  operating  by  way  of  defence  to  any  action  brought 
upon  the  contract  which  it  affects.  But  put  the  case 
that  an  illegal  contract  has  been  in  part  performed — 
that  money,  for  instance,  has  been  paid  in  pursuance  of 
it — no  action  ivill  lie  to  recover  that  money  hack  again.  At 
an  early  period  of  the  law  it  w^as  thought  that  such  an 
action  might  be  perhaps  maintainable  upon  the  ordinary 
principle,  that  an  action  will  lie  to  recover  *back  r:;:9-q-i 
money  w^hich  has  been  paid  on  a  consideration 

(??j)  8  &  9  Yict.  c.  109,  s.  If).  See  Bayley  on  Bills,  by  Dowdeswell 
524.  It  has  been  held  that  bonds  are  within  the  equity  of  this  statute  : 
Hawker  u.  Halliwell,  3  Sm.  &  Giff.  194  ;  25  L.  J.  Ch.  558. 

notes.  If,  indeed,  the  defendant  can  show  that  there  has  been  something 
of  a  fraud  in  the  previous  steps  of  the  transfer  of  the  instrument,  that 
throws  on  the  plaintiff  the  necessity  of  showino;  under  what  circum- 
stances he  became  possessed  of  it ;  so  far  I  accede  to  the  case  of  Heath 
V.  Sansom,  for  there  were  in  that  case  circumstances  raising  a  suspicion 
of  fraud  ;  but  if  I  added  on  that  occasion  that  even  independently  of 
these  circumstances  of  suspicion,  the  holder  would  have  been  bound  to 
show  the  consideration  which  he  <:av3  for  the  bill,  merely  because  there 
was  an  absence  of  consideration  as  between  the  previous  parties  to  the 
bill,  I  am  now  decidedly  of  opinion  that  such  doctrine  was  incorrect." 
The  opinion  thus  expressed  has  since  been  confirmed  in  many  cases.  See 
also  Heydon  v.  Thompson,  1  Ad.  &  Ell.  (28  E.  C.  L.  R.)  210;  Low  v. 
Chifney,  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  2fi7 :  Knight  v.  Pugh.  4  W.  ct  S. 
448,  where  the  reason  for  the  change  of  decision  is  thus  clearly  given. 
"  In  cases  other  than  those  of  negotiable  notes  obtained  or  put  in  circu- 
lation by  fraud  or  undue  means,  the  maker,  by  its  negotiable  character, 
agrees  that  the  payee  shall  put  it  in  circulation.  He  has  no  right,  there- 
fore, to  complain  of  his  own  act ;  and  a  holder  placing  confidence  in 
such  paper,  ought  rot  to  be  compelled  ta  prove  consideration. — r. 


273  smith's  law  of  contracts. 

which  has  failed.  Thus,  for  instance,  in  the  common 
case  of  an  insurance,  supposing  that  I  insure  a  ship  dur- 
ing a  voyage,  and  she  never  sails  upon  it,  I  should  be 
entitled  to  recover  back  the  money  as  paid  upon  a  con- 
sideration which  had  failed :  for  the  consideration  for 
my  paying  the  premium  was  the  risk  the  underwriter 
was  to  take  upon  himself;  but  as  the  risk  was  to  be 
contemporaneous  with  the  voyage,  and  as  that  never 
commenced,  so  neither  did  the  risk,  and,  consequently, 
nothing  was  ever  given  in  exchange  for  the  money.  So, 
in  the  ordinary  case  of  an  action  for  a  deposit.  If  A. 
sells  an  estate  to  B.,  B.  paying  part  of  the  purchase- 
mone}^  as  a  deposit,  if  A.  afterwards  prove  unable  to 
make  out  a  title,  B.  may  recover  back  the  money  de- 
posited for  the  consideration  ;  for  the  sale  has  become 
abortive.  Such  are  the  Common  cases,  and  the  common 
rule  :  where  money  has  been  paid  upon  a  consideration 
which  totally  fails,  an  action  will  lie  to  recover  it  back 
again.  But  it  is  otherwise  where  the  contract  was  an 
illegal  one.  Where  money  is  paid  in  pursuance  of  an 
illegal  contract,  the  consideration  of  course  fails,  for  it 
is  impossible  for  the  party  who  has  paid  the  money  to 
enforce  the  performance  of  the  illegal  contract.  Still, 
no  action  will  lie  to  recover  it  back  again.  The  reason 
of  this  is,  that  the  law  will  not  assist  a  party  to  an  ille- 
gal contract.  He  has  lost  his  money,  it  is  true,  but  he 
p...,  -  .-■  has  lost  it  by  his  own  folly  in  entering  into  *a 
transaction  which  the  law  forbids.  You  will 
see  instances  of  this  in  the  cases  cited  below,  (tz)  the  last 
of  which,  Lubbock  v.  Potts,  is  the  very  case  I  put,  that 
of  an  insurance,  in  which,  if  the  risk  be  not  run,  the 

{n)  M'Kinnell  v.  Robinson,  3  M.  &  W.  441  ;  Howson  v.  Hancock-,  8 
T.  R.  575  ;  Browning  v.  Morris,  Cowp.  790  ;  and  Lubbock  v.  Potts, 
7  East  449. 


ILLEGAL    CONTRACTS.  274 

premium  may  be  recovered  back  again  ;  but  in  that 
case  the  insurance  was  an  illegal  one,  and  it  was  there- 
fore held  that,  though  it  could  not  have  been  enforced, 
the  insured  should  not  recover  back  the  premium.  The 
point  is  forcibly  put  by  L.  C.  J.  Wilmot,  in  his  cele- 
brated judgment  in  Collins  v.  Blantern,  which  I  have 
several  times  cited  from  2  Wilson  341.  "Whoever," 
says  his  Lordship,  "  is  a  party  to  an  unlawful  contract, 
if  he  have  once  paid  the  money  contracted  to  be  paid 
in  pursuance  thereof,  he  shall  not  have  the  help  of  a 
Court  to  fetch  it  back  again.  You  shall  not  have  a 
right  of  action  when  you  come  into  a  Court  of  Justice 
in  this  unclean  manner  to  recover  it  back."^ 

To  this  rulC;,  however,  there  are  two  exceptions  :  The 
first  is,  ivliere  the  iUegalitij  is  created  hy  some  statute,  the 
object  of  which  is  to  protect  one  class  of  men  against  ano- 
ther, or  where  the  illegal  contract  has  been  extorted  from 
one  party  by  the  oppression  of  the  other.  In  cases  of 
this  sort,  although  the  contract  is  illegal,  and  although  a 
person  belonging  to  the  class  against  \vhom  it  is  intended 
to  protect  *others  cannot  recover  money  he  has  r.icr) 7/^-1 
paid  in  pursuance  of  it,  yet  a  person  belonging 
to  the  class  to  be  protected  may,  since  the  allowing  him 
to  do  so  renders  the  Act  more  efficacious.  You  will  see 
this  proposition  illustrated  by  the  case  of  Smith  v. 
Bromley,  (0)  which  turned  on  the  application  of  one  of 
the  old  Bankrupt  Acts.  That  Act,  to  prevent  practices 
on  bankrupts  who  had  not  obtained  their  certificates, 

(0)  2  Dougl.  696,  note. 

'  The  familiar  maxim  applies,  "  In  pari  delicto,  potior  est  conditio  de- 
fendentis ;"  and  instances  of  its  application  may  be  found  in  Worcester 
V.  Easton,  11  Mass.  368  ;  Merion  v.  Huntington,  2  Conn.  209  ;  Perkins 
V.  Savage,  15  Wend.  412,  and  in  many  other  cases  :  White  v.  Hunter, 
3  Fost.  128.— R. 
20 


275  smith's  law  of  contracts. 

and  who  for  the  sake  of  obtaining  them  were  likely  to 
be  willing  to  submit  to  any  terms,  however  hard,  that 
might  be  imposed    upon  them,  vacated   all   securities 
given  by  the  bankrupt  or  any  one  on  his  behalf,  in 
consideration   of  the    signature   of  the   certificate.     A 
creditor  refused  to  sign  the  certificate  unless  a  sum  of 
money  was  paid  him  by  a  friend  of  the  bankrupt's,  and, 
the  money  having  been  paid,  it  was  held  that  the  person 
who  paid  it  might  recover  it  back  again.     In  like  man- 
ner one  of  the  old  Lottery  Acts  forbade,  under  a  penalty, 
the  ensuring  of  lottery  tickets.     The  plaintiff  had  paid 
a  sum  of  money  to  the  lottery  office  keeper  as  premiums 
for  the  purpose  thus  forbidden,  and  was  held  entitled  to 
recover  it  back  as  money  received  to  his  use.(jt?)      The 
Acts   against  usury   (now  repealed)    made   the   taking 
money,  reward,  or  promise  of  reward,  by  the  informer 
or  plaintiff  suing  for  the  penalties  of  usury,  in  order  to 
r:j:0  7  '-]    compound  with  any  person  offending  *against 
those  laws,  very  highly  penal :  the  object  being 
to  prevent  the  person  so.  offending  from  being  harassed 
by  v-exatious  actions  and  informations.     It  was  there- 
fore held,  that,  where  the  defendant  had  in  a  former 
action  sued  the  plaintiff  for  the  penalties  of  usury  in  a 
transaction  with  another  person,  and  the  plaintiff  had, 
in  order  to  get  rid  of  that  penal  action,  compounded 
with   the   defendant,   by  paying   him  a  large   sum   of 
money,  he  might  recover  it  back  from  the  defendant, 
the  prohibition  against  compounding  such  actions  being 
made  for  the  protection  of  the  party  sued  in  them.    The 
Court  considered,  that,  although  the  plaintiff  was  guilty 
of  usury,  and  liable  to  the  penalties  for  usury,  he  was 
not  liable  to  be  harassed  by  actions  commenced  for  the 
purpose   of  being   compounded.     His    criminality  was 

{p)  Jacques  v.  Golightly,  2  Bl.  1073  ;  Jacques  v.  Withy,  1  II.  Bl.  65. 


ILLEGAL   CONTRACTS.  276 

collateral  to  the  offence  of  compounding ;  his  conscious- 
ness of  his  usurious  dealings  and  dread  of  the  conse- 
quences laid  him  at  the  mercy  of  the  defendant,  and 
enabled  the  latter  to  effectuate  an  act  of  extortion  by 
procuring  the  payment  of  a  sum  of  money :  and  in  re- 
spect of  the  criminal  offence  of  compounding,  the  plaintiff' 
was  the  person  whose  situation  was  taken  advantage  of 
against  the  object  of  the  statute,  which,  for  his  protec- 
.tion,  made  such  compounding  illegal.  (5') 

Very  similar  to  the  case  of  Smith  v.  Bromley, 
*above  cited,  is  that  of  Smith  v.  Cuffe,  (r)  where  ^  "^  -■ 
the  defendant,  who  was  a  creditor  5f  the  plaintiff, 
entered  into  an  agreement  with  the  plaintiff  and  the 
other  creditors,  to  accept  a  composition  of  106'.  in  the 
pound  on  the  debts  due  to  them  from  the  plaintiff.  The 
defendant  would  not  enter  into  this  agreement  except 
upon  the  consideration  that  the  plaintiff  should  give  him 
his  promissory  note  for  the  remainder  of  his  debt.  The 
note  was  given,  the  lO.s.  in  the  pound  paid,  the  defend- 
ant passed  away  the  note,  and  the  owner  compelled  the 
plaintiff  to  pay  it.  The  Court  decided  that  the  plaintiff* 
might  recover  back  from  the  defendant  the  amount  of 
the  note  so  paid.  In  this  case  it  was  strongly  argued, 
that,  both  parties  having  been  guilty  of  a  fraud  upon 
the  creditors,  the  case  was  within  the  rule  in  pari  delicto 
potior  est  conditio  defendentis ;  but  Lord  Ellenborough 
said,  "this  is  not  a  case  oi  par  delictum,  but  of  oppres- 
sion on  one  side,  and  submission  on  the  other ;  it  can 
never  be  predicated  as  par  delictum,  when  one  holds  the 
rod,  and  the  other  bows  to  it ;  there  was  an  inequality 
of  situation  between  these  parties — one  was  creditor, 

[q)  Williams  v.  Hedley,  8  East  378. 

(r)  6  M.  &  Selw.  160;  Atkinson  v.  Denby,  31  L.  J.  (Ex.)  362;  7  II.  & 
N.  934,  Ex.  Ch. 


277  smith's  law  of  contracts. 

the  other  debtor,  who  was  driven  to  comply  with  the 
terms  which  the  former  chose  to  enforce.  And  is  there 
any  case,  where,  money  having  been  obtained  extor- 
sively  and  by  oppression,  and  in  fraud  of  the  party's 
r*97S1  ^^^^  ^^^  ^^  ^^  regards  the  other  creditors,  it 
*has  been  held  that  it  may  not  be  recovered 
back  ?  On  the  contrary,  I  believe  it  has  been  uniformly 
decided,  that  an  action  lies." 

This  case  has  been  approved  and  acted  on  in  the 
more  recent  case  of  Horton  v.  Riley,  (6)  where  the  de- 
fendant, being  a  creditor  of  the  plaintiff  entered  into  a 
similar  agreemelit  to  that  in  Smith  v.  Cuffe,  with  the 
plaintiff  and  the  other  creditors ;  but  at  the  same  time 
agreed  privately  with  the  plaintiff  himself,  that  the 
excess  of  his  debt  beyond  the  composition  should  be 
secured  to  him  by  the  joint  promissory  note  of  the 
plaintiff  and  two  sureties,  which  note  the  defendant 
agreed  to  keep  in  his  own  hands.  The  note  was  given, 
but  the  defendant  negotiated  it,  and  the  holder  enforced 
payment  from  the  plaintiff.  Under  these  circumstances, 
the  plaintiff,  if  sued  by  the  defendant  upon  the  note, 
would  have  had  a  good  defence  against  him.  Of  this 
defence  he  was  deprived  by  the  defendant's  having 
handed  the  note  over,  whereby  the  plaintiff  was  com- 
pelled to  pay  the  money,  and  he  had  therefore  a  right 
to  recover  it  back  from  the  defendant.  "  The  agreement 
in  this  case,"  said  Lord  Abiriger,  "  makes  it  a  stronger 
case  even  than  Smith  v.  Cuffe,  and  I  see  no  reason  why 
we  should  depart  from  that  decision." 

The  other  exception  is,  that,  when  money  has  been 
ni^97Q1   P^^'^  in  pursuance  of  an  illegal  contract,  but  paid 
'^'7iot  to  the  other  contracting  party,  hut  to  a  stake- 
holder, then  either  party  may  recover  it  hack  again;  for  in- 

(s)  11  M.  &  W.  492.     See  Fraser  v.  Pendlebury,  31  L.  J.  (C.  P.)  1. 


ILLEGAL   CONTRACTS.  279 

stance,  if  parties  agreed  to  play  at  an  illegal  game,  and 
each  deposited  his  stake  in  A.'s  hands,  either  might  re- 
cover it  back  from  A.;  for  it  is  obvious,  that,  in  this  case, 
to  allow  the  money  to  be  recovered,  is  to  allow  the 
porties  a  locus  poenitentice,  within  which  they  may  repent  i 

of  their  illegal  contract,  and  refrain  from  completing  it      v   f1/Mi 
at  all.     Thus  it  has  been  held,  that  if  a  wager  be  depos-       Y 
ited  with  a  stakeholder,  to  be  paid  over  on  the  event  of  j\|J    \\ 
a  battle  to  be  fought  by  the  parties  laying  the  wager, 
and  it  be  demanded  from  him  before  it  has  heen  paid  over, 
the  party  demanding  may  recover  it  from   the   stake- 
holder, although  the  battle  has  been  fought,  [t)  but  it  did 
not  appear  which  party  had  succeeded. 

The  law  on  this  point  has  commonly  been  illustrated 
in  the  case  of  stakeholders,  as  these  cases  show;  but 
where  the  party  receiving  the  money  receives  it  in  pur- 
suance of  any  agreement  between  him  and  the  other 
party,  according  to  which  he  is  to  apply  it  to  an  illegal  * 

purpose,  the  other  may  recover  it  before  it  is  so  ap- 
plied, {u) 

*I  have  now  done  with  the  contract  itself    r:::9C(-)-i 
I  have  stated  the  various  points  relating  to  the 
contract  itself,  the  consideration,  and  the  effect  of  ille- 
gality on  either.     In  the  next  Lecture  I  shall  speak  of 
the  parties  to  it. 

(t)  See  Cotton  v.  Thurland,  5  T.  R.  405;  Smith  v.  Bickmore,  4  Taunt. 
474  ;  Hastelow  v.  Jackson,  8  B.  &  C.  (15  E.  C.  L.  R.)  221 :  Hodson  v. 
Terril,  1  C.  &  M.  797;  Batty  v.  Marriott,  5  C.  B.  (57  E.  C.  L.  R.)  818, 
883,  n.  As  to  the  difference  between  the  position  of  the  stakeholder 
here,  and  where  the  contract  is  not  tainted  with  illegality,  see  ante,  p. 
247. 

[u)  Bone  v.  Ekless,  5  H.  &  N.  925 ;  29  L.  J.  (Ex.)  438. 


281  smith's  law  of  contracts. 


[*281]  =5=LECTURE  VIII. 

PARTIES     TO    CONTRACTS. WHO     ARE     INCOMPETENT     TO     CON- 
TRACT.  INFANTS. WIVES. 

The  next  branch  of  the  subject  relates  to  the  parties 
to  the  contract.  Now  this  you  will  at  once  perceive,  in- 
volves a  double  consideration. 

First,  regarding  the  ahility  of  the  parties  to  the  con- 
tract to  contract  at  all. 

Secondly,  regarding  their  ability  to  enter  into  this  or 
that  particular  sort  of  contract ;  for  (as  I  shall  have  to 
explain  more  at  length  to  you)  there  are  persons  who 
are  allowed  by  the  law  to  contract,  but  are  not  allowed 
to  contract  in  the  same  way  as  an  ordinary  individual ; 
for  instance,  a  corporation  may  contract  hj  deed,  but 
cannot,  except  in  certain  cases  which  I  shall  presently 
specify,  contract  in  any  other  manner.  However, 
although  these  two  considerations  are  in  themselves  dis- 
tinct, yet  I  think  the  better  and  more  intelligible  plan 
will  be  to  deal  with  both  of  them  together,  specifying 
one  by  one  those  classes  of  persons  regarding  whose 
power  to  contract  the  law  contains  any  particular  pro- 
visions, and  pointing  out,  while  treating  upon  each  of 
them,  in  what  cases  they  are  disabled  from  entering  into 
any  contract,  and  in  what  cases,  although  allowed 
r*9S91  *^^  contract,  they  are' obliged  to  do  so  in  a  par- 
ticular form. 

Now,  I  need  hardly  tell  you  ihtxt,  prima  facie  any 
subject  of  the  realm  has  power  to  enter  into  any  con- 
tract not  rendered  illegal  by  the  provisions  of  the  statute 
or  common  law;  and,  therefore,  the  cases  to  which  I  am 


PARTIES    TO    CONTRACTS.  282 

now  to  advert  are  cases  of  complete  or  partial  disaUUfi/; 
cases  in  which  a  contract,  which  would  have  been  good  if 
entered  into  by  an  ordinary  individual,  is,  when  entered 
into  by  some  particular  individual,  invalid,  because  that 
individual  happens  to  Ml  within  a  class  of  persons  who 
either  do  not  possess  ahiliti/  to  contract  at  all,  or  do  not 
possess  ability  to  contract  in  that  particular  way. 

The  first  of  these  classes  of  persons  to  which  I  shall 
.advert,  is  that  o^  Infants. 

The  general  principle  which  regulates  this  branch  of 
the  law  is,  that  until  an  individual  has  attained  the  age 
of  twenty-one,  which  period  the  law  has  selected  as  that 
at  which  a  person  of  average  capacity  may  fairly  be  sup- 
posed to  have  attained  sufficient  experience  to  render 
his  natural  faculties  fully  available  in  the  practical  busi- 
ness of  the  world,  it  is  necessary  to  shield  him  from  the 
dangers  of  becoming  a  prey  to  others  willing  to  take  an 
advantage  of  his  inexperience;  and  as  there  are  no 
means  of  doing  this  except  by  placing  him  under  a 
limited  disability  to  contract,  he  is  accordingly  placed 
under  such  limited  disability.  But,  ^inasmuch  r:::.;)oq-] 
as  to  place  him  under  a  total  disability  might 
have  the  effect  of  preventing  him  from  attaining  objects 
not  only  not  detrimental,  but  of  the  utmost  advantage 
to  him,  he  is,  in  order  to  avoid  this  risk,  permitted  to 
bind  himself  to  a  certain  extent,  since  otherwise  he 
might  be  unable  to  obtain  food,  clothes,  or  education, 
though  certain  to  possess  at  no  very  distant  period  the 
means  of  amply  paying  for  them  all. 

The  general  principle  therefore  is,  that  an  infant  may 
bind  himself  by  a  contract  for  what  the  law  considers 
necessaries,  but  not  by  any  other  contract.  .We  will  con- 
sider, therefore,  what  it  is  that  the  law  comprises  under 
this  denomination. 


283  smith's  law  of  contracts. 

Now,  it  is  well  established  by  the  decisions,  that 
under  the  denomination  necessaries  fall  not  only  the  food, 
clothes,  and  lodging  necessary  to  the  actual  support  of 
life,  but  likewise  means  of  education  suitable  to  the  in- 
fant's degree,  and  all  those  accommodations,  conveni- 
ences, and  even  matters  of  taste,  which  the  usages  of 
society  for  the  time  being  render  proper  and  conform- 
able to  a  person  in  the  rank  in  which  the  infant  moves. 
The  question  what  is  conformable — what  is,  in  the  legal 
sense  of  the  word,  necessary — is,  in  each  case,  to  be  de- 
cided by  a  jury  ;  but  these  are  the  principles  by  which 
the  judge  ought  to  direct  the  jury  that  their  decision 
should  in  each  particular  case  be  guided.  Though  how- 
ever the  question  of  "  necessaries"  or  not  "  necessaries" 

r*9R4-1  ^^  *-*^^  ^^  ^^^^  ^^^^  therefore  for  the  *jury ;  yet 
like  all  other  questions  of  fact,  it  should  not  be 
left  to  the  jury  by  the  judge  unless  there  is  evidence  on 
which  they  can  reasonably  find  in  the  affirmative.  If 
there  is  not,  the  judge  ought  to  withdraw  the  question 
from  the  jury,  [cl)  It  is  impossible,  however,  to  under- 
stand this  subject  practically,  so  as  to  be  able  to  say 
with  tolerable  certainty  what  would  be  the  decision  on 
this  or  that  particular  case,  except  by  a  familiarity  with 
similar  ones.  I  will  therefore  refer  you  to  a  number  of 
decided  cases,  containing,  in  my  judgment,  the  best 
illustrations  of  the  matter. 

The  two  cases  of  Peters  v.  Fleniing,(^)  and  Harrison 
V.  Fane,(c)  in  one  of  which  the  infant  Avas  held  liable, 
and  in  the  other  not,  appear  ■  to  me  to  furnish  good 
examples  of  the  distinctions  of  Avhich  I  am  speaking. 

In  Peters  v.  Fleming,  the  plaintiff,  who  was  a  jewel- 

(a)  Ryder  v.  Wombwell,  L.  R.  4  Ex.  32  ;  38  L.  J.  (Ex.)  8  (Ex.  Ch.), 
reversing  s.  c,  3  L.  R.  Ex.  90;  37  L.  J.  (Ex.)  48. 

(&)  6  M.  &  W.  42.  (c)  1  M.  &  Gr.  (39  E.  C.  L.  R.)  550. 


PARTIES    TO    CONTRACTS.  284 

ler,  brought  an  action  of  debt  against  an  infant  who 
pleaded  his  infancy  by  way  of  defence ;  the  plaintiff  re- 
jDlied  that  the  goods,  for  the  price  of  which  he  sued,  Avere 
necessaries  suitable  to  the  estate,  degree,  and  condition 
in  life  of  the  infant ;  on  which  issue  was  joined,  and  the 
question  to  be  tried  was,  whether  they  were  or  were  not 
so.  It  turned  out  that  the  infant  was  the  eldest  son  of 
a  member  of  Parliament,  who  was,  also,  a  gentleman 
*of  fortune,  and  that  the  infant  was  an  under-  r*9cc-| 
graduate  of  the  University  of  Cambridge,  and 
resided  at  the  University.  The  articles  supplied  were 
four  rings,  a  gold  watch-chain,. and  a  pair  of  breast-pins. 
The  jury  found  that  these  articles  were  necessaries,  and 
a  motion  was  made  to  set  aside  the  verdict  as  contrary 
to  evidence.  The  Court  of  Exchequer,  however,  refused 
to  interfere.  Baron  Parke  said, — "  It  is  perfectly  clear, 
that,  from  the  earliest  time  down  to  the  present,  the 
word  necessaries  was  not  confined  to  such  articles  as  were 
necessary  to  the  support  of  life,  but  extended  to  articles 
fit  to  maintain  the  particular  person  in  the  state,  station, 
and  degree  of  life  in  which  he  is  ;  and  therefore,  we  must 
not  take  the  word  ^necessaries  in  its  unqualified  sense, 
but  with  the  qualification  above  pointed  out.  The  ques- 
tion, therefore,  is,  whether  there  was  any  evidence  to 
go  to  the  jury  that  any  of  these  articles  w'ere  of  that  de- 
scription. I  think  there  are  two  that  might  fall  under 
that  description,  namely,  the  breast-pin  and  the  w^atch- 
chain.  The  former  might  be  a  matter  either  of  necessity 
or  of  ornament.  The  usefulness  of  the  other  might  de- 
pend on  this,  whether  the  watch  was  necessary  ?  If  it 
was,  then  the  chain  might  become  necessary  itself. 
Now,  it  is  impossible  that  a  judge  could  withdraw  from 
the  consideration  of  a  jury  whether  a  watch  w^as  neces- 
sary for  a  young  man  at  college,  and  of  the  age  of  eigh- 


285  smith's  law  of  contracts. 

teen  or  nineteen,  to  have.     That  being  so,  it  is  equally, 
r*2Sri    ^^  ^'^^  ^^  ^^^  *chain  is  concerned,  a  question  for 

the  jury.  There  was  therefore  evidence  to  go 
to  the  jury.  The  true  rule  I  take  to  be  this,  that  all 
such  articles  as  are  purely  ornamental  are  not  necessary, 
and  are  to  be  rejected,  because  they  cannot  be  requisite 
for  any  one,  and  for  such  matters  therefore  an  infant 
cannot  be  made  responsible.  But  if  they  were  not  strictly 
of  this  description,  then  the  question  arises  whether  they 
were  bought  for  the  necessary  use  of  the  party,  in  order 
to  support  himself  properly  in  the  degree,  state,  and 
station  of  life  in  which  he  moved.  If  they  were,  for 
such  articles  the  infant  may  be  made  responsible." 

On  the  other  hand,  in  Harrison  v.  Fane,((i)  an  action 
was  brought  by  a  livery  stable-keeper  for  the  hire  of 
horses ;  the  defendant  pleaded  infancy,  and  the  plaintiff 
replied  that  the  horses  furnished  were  necessary  for  the 
infant,  upon  which  issue  was  joined.  It  turned  out,  on 
the  trial,  that  the  defendant  was  the  younger  son  of  a 
gentleman  who  had  once  been  a  member  of  Parliament, 
and  who  had  a  family  of  five  children.  The  defendant, 
the  infant,  kept  a  horse  of  his  own,  and  sometimes 
hunted  with  his  father's  hounds.  Under  these  circum- 
stances the  judge  who  tried  the  cause  thought  that  the 
r*9^71    ^^^^'^^^  *were  not  necessaries,  and  directed  the 

jury  accordingly ;  but  the  jury  thought  proper, 
nevertheless,  to  find  their  verdict  for  the  plaintiff.  The 
Court,  considering  it  a  perverse  one,  and  contrary  to  law, 
set  it  aside,  the  L.  C.  J.  observing  that  he  would  not 
say  that  horses  could  not  be  necessaries  under  any  cir- 

{d)  1  M.  &  Gr.  (39  E.  C.  L.  R.)  550.  See,  however,  the  decision  of  the 
Court  of  Exch.  Ch.  in  Ryder  v.  Wombwell,  cited  anU^  p.  284,  as  to  the 
duty  of  the  judge  to  withdraw  the  question  from  the  jury  in  the  absence 
of  evidence  on  which  they  could  reasonably  find  that  the  articles  were 
necessaries. 


PARTIES    TO    CONTRACTS.  287 

cumstances,  but  that  no  evidence  was  given  that  they 
were  so  in  the  present  case/     With  regard  to  the  L.  C. 

'  The  result  of  the  cases  on  both  sides  of  the  Atlantic  seems  to  be,  that 
unless  the  articles  are,  both  as  to  quality  and  quantity,  such  as  must  be 
necessaries  to  any  one,  the  burden  of  proof  lies  on  the  plaintiff"  to  show 
such  a  condition  of  life  of  the  defendant  as  might  raise  to  the  rank  of 
necessaries,  things  which  would  otherwise  be  luxuries  :  Brooker  v.  Scott; 
Wharton  v.  M'Kenzie ;  Rainwater  r.  Durham,  2  N.  &  M.  524  ;  Rundle 
V.  Keeler,  7  Watts  239  ;  Phelps  v.  Worcester,  UN.  H.  51  ;  Bent  v.  Man- 
ning, 10  Yerm.  225  ;  Grace  v.  Hale,  2  Humph.  27.  When  this  has  been 
shown,  the  question  whether  the  articles  are  necessaries,  is  one  for  the 
jury,  subject,  however,  in  some  cases,  to  the  direction  of  the  Court,  as, 
for  instance,  as  was  said  in  Wharton  v.  M'Kenzie,  supra,  "  Suppose  the 
son  of  the  richest  man  in  the  kingdom  to  have  been  supplied  with  dia- 
monds and  race^horses,  the  Judge  ought  to  tell  the  jury  that  such  arti- 
cles cannot  possibly  be  necessaries."  And  it  would  also  seem  that  the 
articles  must  be  to  supply  ^jerso^ia?  wants  either  for  the  body  or  mind  ; 
expenditures,  therefore,  for  other  purposes,  as,  for  example,  for  altera- 
tions in  an  infant's  real  estate,  however  requisite,  can  never  be  consid- 
ered as  necessaries,  they  being  regarded  in  the  same  light  as  articles 
furnished  him  for  trade,  the  price  of  which  cannot,  as  will  be  presently 
seen,  be  recovered  as  necessaries,  however  beneficial  they  may  be  to  the 
business :  Tupper  i\  Caldwell,  13  Mete.  563.  And  even  in  cases  where 
there  can  be  no  doubt  that  the  articles  are  pi-oper  and  necessary  in  them- 
selves, yet  as  an  overplus  of  goods,  otherwise  proper,  ceases  to  be  a  sup- 
ply of  necessaries  as  to  the  excess,  the  jury  should  be  directed  to  find 
for  no  more  than  is  absolutely  necessary,  unless  there  is  evidence  to 
justify  the  quantity:  Johnson  v.  Lines,  6  W.  &  S.  84. — r. 

The  board  of  an  infant  is  included  among  the  necessaries,  for  which 
he  may  pledge  his  credit:  Bradley  v.  Pratt,  23  Verm.  378.  Circum- 
stances may  exist  which  would  render  a  home  suitable  to  an  infant's 
fortune  and  station  in  life  :  Aaron  v.  Harley,  6  Rich.  26.  An  infant 
who  has  an  allowance  from  the  Court  or  any  other  source,  of  a  sum 
sufficient  to  supply  himself  with  necessaries,  suitable  to  his  fortune  and 
condition  is  not  liable  ordinarily  for  hecessaries  supplied  on  credit : 
Rivers  v.  Gregg,  5  Rich.  Eq.  R.  274.  Where  it  apj^ears  that  a  minor  has 
been  furnished  with  money  enough  to  procure  all  necessaries,  the  law 
presumes  that  he  has  been  fully  supplied,  and  the  plaintiff  must  nega- 
tive that  presumption.  And  if  it  appears  that  he  has  been  furnished  at 
other  places,  at  or  about  the  same  time,  those  who  supplied  him  first 
have  a  prior  right  to  be  paid  :  Nicholson  v.  Wilborn,  13  Ga.  467. 
Whether  certain  articles  furnished  a  minor  were  necessaries  or  not  is 
generally  a  question  of  fact  for  the  jury,  depending  on  all  the  circura- 


287  smith's  law  of  contracts. 

Justice's  remark,  I  feel  no  difficulty  in  putting  a  case  in 
which  a  horse  might  be  considered  necessary.  Suppose, 
for  instance,  the  infant  were  a  young  man  in  a  genteel 
station  of  life,  and  had  been  ordered  horse  exercise  by 
a  medical  attendant. 

Thus,  in  a  case  subsequently  decided,  (e)  soda  water, 
oranges,  and  jellies,  for  an  infant  undergraduate  at  col- 
lege, were  held,  iwimd  facie,  not  to  be  necessaries, 
though  they  might  have  been  shown  to  have  been  so. 
"  This,"  said  Mr.  Baron  Parke,  "  is  the  case  of  a  young 
man  resident  in  the  town,  and  having  from  his  college 
everything  necessary  for  a  person  in  statu  jmpiUari." 
Had  there  been  evidence  that  his  medical  attendant 
recommended  them,  they  would  undoubtedly  have  been 
considered  necessaries.  (/)  The  case  of  Hands  v.  Sla- 
te) Brooker  v.  Scott,  11  M.  &  W.  67. 
(/)  Wharton  v.  M'Kenzie,  5  Q.  B.  (48  E.  C.  L.  R.)  606. 

stances  of  the  case  ;  the  two  principal  circumstances  being  whether  the 
articles  were  suitable  to  the  minor's  estate  and  condition,  and  whether 
he  is  without  other  means  of  supply:  Davis  v.  Caldwell,  12  Gush.  512. 
If  an  infant  is  under  the  care  of  a  parent  or  guardian,  who  has  the  means 
and  is  willing  to  furnish  him  what  is  actually  necessary,  he  can  make  no 
contract  for  any  article  that  will  bind  him  :  Elrod  v.  Myers,  2  Head  33. 
A  contract  for  the  insurance  of  his  property  against  loss  or  damage  by 
fire  is  not  a  contract  for  necessaries  :  New  Hampshire  Ins.  Co.  v.  Noyes, 
32  N.  H.  345.  Nor  is  a  contract  to  repair  his  estate  :  West  v.  Gregg,  1 
Grant  53.  As  to  what  are  necessaries  see  Merriam  v.  Cunningham,  11 
Cush.  40;  Sams  v.  Stockton,  14  B.  Mon.  232;  Freeman  i'.  Bridger,  4 
Jones  (Law)  1 ;  Wilhelm  v.  Nordman,  13  Md.  140.  An  infant  may  bind 
himself  to  pay  for  necessaries  he  obtains  so  much  as  they  are  reasonably 
worth,  but  not  what  he  may  foolishly  have  agreed  to  pay  for  them  : 
Locke  V.  Smith,  41  N.  H.  346  ;  Squier  v.  Hydliff,  9  Mich.  274.  A  minor 
is  liable  for  money  paid  at  his  request  by  the  plaintiff  to  a  third  person 
for  necessaries  furnished  him :  Swift  v.  Bennett,  10  Cush.  436.  Pay- 
ment to  a  minor  under  a  contract  for  services  made  directly  with  him, 
but  with  the  knowledge  of  the  parent  is  a  good  defence  to  an  action 
brought  by  the  parent  to  recover  for  such  services  :  Nixon  v.  Spencer, 
16  Iowa  214.  See  also  Munson  v.  Washband,  31  Conn.  303  ;  Robinson 
V.  Weeks,  56  Me.  102. 


PARTIES    TO   CONTRACTS.  288 

ney,(^)  also  well  illustrates  both  *these  propo-  r^ooo-i 
sitions,  for  in  that  case  it  was  held  that  a  cap- 
tain in  the  army,  under  age,  was  liable  for  a  livery, 
ordered  by  him  for  his  servant,  but  not  for  cockades 
given  to  the  soldiers  of  his  company.  Lord  Kenyon 
thought  it  was  proper  for  a  gentleman  in  the  defendant's 
situation  to  have  a  servant,  and  if  proper  to  have  a  ser- 
vant, that  the  servant  should  have  a  livery,  but  that  the 
cockades  could  not  be  necessaries.  In  one  of  the  most 
recent  cases  on  the  subject,  Ryder  v.  Womb  well,  (A)  it 
was  held  that  there  was  no  evidence  of  either  a  pair  of 
jewelled  solitaires  worth  £25,  or  an  antique  goblet,  in- 
tended for  a  present,  worth  .£15  15^.,  being  necessaries 
for  an  infant,  the  son  of  a  baronet,  with  no  independent 
establishment,  and  in  the  receipt  of  an  allowance  of 
£500  a  year ;  that  the  question,  therefore,  of  "  necessa- 
ries" or  not  ought  not  to  be  left  to  the  jury,  but  a  nonsuit 
directed.  If  the  articles  supplied  to  the  infant  are  in 
their  own  nature  necessaries,  considering  the  infant's 
degree  and  station,  it_is_immaterial  that  he  had  such  an 
aJhi<'(ii)ci'  p;ii(l  to  him  as  might  have  enabled  him  to  pay 
ready  iiiuuey  for  them.(z)  Whether  it  is  necessary  for 
a  tradetsman,  before  supplying  an  infant  with  goods,  to 
make  inquiries  as  to  the  degree  in  which  he  is  already 
supplied  with  goods  of  the  like  kind,  "  is  a  question  of 
some  *nicety,  and  the  authorities  are  by  no  r:;:9QQ-| 
means  uniform."  (^)  ^ 

It  has  always  been  considered  that  necessaries  for  an 

(^)  8  T.  R.  578  ;  Coates  v.  Wilson,  5  Esp.  152. 

(A)  In  Ex.  Ch.  L.  R.  4  Ex.  32,  38  L.  J.  (Ex.)  8,  reversing  s.  c,  L.  R. 
3  Ex.  90,  37  L.  .J.  (Ex.)  48. 

{i)  Burghart  v.  Hall,  4  M.  &  W.  727. 

(A;)  See  the  judgment  of  the  Ex.  Ch.  in  Ryder  v.  Wombwell,  L.  R.  4 
Ex.,  at  p.  42,  L.  J.  (Ex.)  38;  at  p.  12,  where  the  cases  are  collected. 


289 


SMITHS    LAW    OF    CONTRACTS. 


infant's  wife  and  children  are  necessaries  for  himself, (/)^ 
a,  doctrine  which,  together  with  that  of  an  infant's  liabil- 
ity generally,  is  so  fully  and  clearly  explained  in  the 
judgment  of  the  Court  of  Exchequer,  in  the  case  of 
Chappie  V.  Cooper,  (wz)  that  it  deserves  to  be  carefully 
studied.  "  It  seems  cl-ear,"  said  Mr.  Baron  Alderson, 
delivering  the  judgment  of  the  Court,  "  that  an  infant 
can  contract  so  as  to  bind  himself  in  those  cases  where 
it  is  necessary  for  him  to  have  the  things  for  which  he 
contracts  ;  or  Avhere  the  contract  is,  at  the  time  he 
makes  it,  plainly  and  unequivocally  for  his  benefit.  It 
is  with  the  former  class  that  we  are  concerned.  Things 
necessary  are  those  without  which  an  individual  cannot 
reasonably  exist.  In  the  first  place,  food,  raiment,  lodg- 
ing, and  the  like.  About  these  there  is  no  doubt. 
Again,  as  the  proper  cultivation  of  the  mind  is  as  expe- 
dient as  the  support  of  the  body,  instruction  in  art  or 
trade,  or  intellectual,  moral,  and  religious  information 
may  be  a  necessary  also.  Again,  as  man  lives  in  so- 
ciety, the  assistance  and  attendance  of  others  may  be 
a    necessary   to    his    well-being.       Hence,    attendance 

*may  be  the  subject  of  an  infant's  contract. 

Then  the  classes  being  established,  the  subject- 
matter  and  extent  of  the  contract  may  vary  according 
to  the  state  and  condition  of  the  infant  himself.  His 
clothes  may  be  fine  or  coarse,  according  to  his  rank;  his 
education  may  vary  according  to  the   station  he  is  to 


[*290] 


[l]  Turner  v.  Trisby,  1  Str.  168. 


[m)  13  M.  &  W.  252. 


^  So,  indeed,  an  infant  marrying  an  adult  wife  becomes  liable  on  her 
contracts  whether  for  necessaries  or  otherwise  ;  for  her  contracts  are 
valid,  being  made  by  an  adult,  and  the  husband's  liability  is  an  incident 
of  marriage  contract,  w' hich  is  one  that  the  law  allows  the  infant  to  make : 
Butler  V.  Breck,  7  Mete.  164  ;  Roach  v.  Quick,  9  Wend.  238. — r. 


PARTIES    TO    CONTRACTS.  290 

fill ;  and  the  medicines  will  depend  on  the  illness  with 
which  he  is  afflicted,  and  the  extent  of  his  probable 
means  when  of  age.  So,  again,  the  nature  and  extent 
of  the  attendance  will  depend  on  his  position  in  society; 
and  a  servant  in  livery  may  be  allowed  to  a  rich  infant, 
because  such  attendance  is  commonly  appropriated  to 
persons  in  his  rank  of  life.  But  in  all  these  cases  it 
must  be  first  made  out  that  the  class  itself  is  one  in 
which  the  things  furnished  are  essential  to  the  exist- 
ence and  reasonable  advantage  and  comfort  of  the  infant 
contractor.  Thus,  articles  of  mere  luxury  are  always 
excluded,  though  luxurious  articles  of  utility  are  in  some 
cases  allowed.  So,  contracts  for  charitable  assistance 
to  others,  though  highly  to  be  praised,  cannot  be  allowed 
to  be  binding,  because  they  do  not  relate  to  his  own  per- 
sonal advantage.  In  all  cases  there  must  be  personal 
advantage  from  the  contract  derived  to  the  infant  him- 
self. It  is  manifest,  we  think,  that  this  principle  alone 
would  not  be  sufficient  to  decide  the  present  case.  For 
it  would  be  difficult  to  say  that  there  is  any  personal 
advantage  necessarily  derived  to  an  infant  from  the  mere 
burial  of  *a  deceased  person.  But  there  is.ano-  \i■^^){\\^^ 
ther  consideration  which  arises  out  of  the  cir- 
cumstances of  this  case,  which  may,  we  think,  mate- 
rially affect  the  defendant's  liability.  This  is  the  case 
of  an  infant  widow,  and  the  burial  that  of  her  husband, 
who  has  left  no  property  to  be  administered.  Now,  the 
law  permits  an  infant  to  make  a  valid  contract  of  mar- 
riage; and  all  necessaries  furnished  to  one  with  whom 
he  becomes  one  person  by  or  through  the  contract  of 
marriage  are,  in  point  of  law,  necessaries  to  the  infant 
himself.  Thus,  a  contract  for  necessaries  to  an  infant's 
wife  and  lawful  children  is  used  by  Lord  Bacon  as  one 
of  the   illustrations   of  the   maxim   ^Persona  conjimda 


291  smith's  law  of  contracts. 

wqiiifparaiur  interesse  iwoprio! {n)  'If  a  man/  says 
Lord  Bacon,  'under  the  years  of  twenty-one  contract 
for  the  nursing  of  his  lawful  child,  this  contract  is  good, 
and  shall  not  be  avoided  by  infancy,  no  more  than  if  he 
had  contracted  for  his  own  aliment  or  erudition.'  Now 
there  are  many  authorities  which  lay  down  that  decent 
Christian  burial  is  a  part  of  a  man's  own  rights;  and 
we  think  it  is  no  great  extension  of  the  rule,  to  say 
that  it  may  be  classed  as  a  personal  advantage,  and  rea- 
sonably necessary  to  him.  His  property,  if  he  leaves 
any,  is  liable  to  be  appropriated  by  his  administrator  to 
the  performance  of  this  proper  ceremonial.  If,  then, 
this  be  so,  the  decent  Christian  burial  of  his  wife  and 
r*9Q91  *l^"^vful  children,  who  are  the  persons  conjundce 
with  him,  is  also  a  personal  advantage,  and  rea- 
sonably necessary  to  him ;  and  then  the  rule  of  law 
implies  that  he  may  make  a  binding  contract  for  it. 
This  seems  to  us  to  be  a  proper  and  legitimate  conse- 
quence, from  the  proposition  that  the  law  allows  an 
infant  to  make  a  valid  contract  of  marriage.  If  this  be 
correct,  then  an  infant  husband  or  parent  may  contract 
for  the  burial  of  his  wife  or  lawful  children ;  and  then 
the  question  arises,  whether  an  infant  widow  is  in  a 
similar  situation.  It  may  be  said  that  she  is  not,  be- 
cause during  the  coverture  she  is  incapable  of  contract- 
ing, and,  after  the  death  of  the  husband,  the  relation  of 
marriage  has  ceased.     But  we  think  this  is  not  so. 

-'  In  the  case  of  the  husband,  the  contract  will  be 
made  after  the  death  of  the  wife  or  child,  and  so  after 
the  relation  which  gives  validity  to  the  contract  is  at  an 
end  to  some  purposes.  But  if  the  husband  can  con- 
tract for  this,  it  is  because  a  contract  for  the  burial  of 
those  who  are  personce  conjundce  with  him  by  reason  of 

(»)  Bac.  Law  Maxims,  r.  18 — Broom's  Maxims  407,  2d  ed. 


PARTIES    TO   CONTRACTS.  292 

the  marriage,  is  as  a  contract  for  his  own  personal 
benefit;  and  if  that  be  so,  we  clo  not  see  why  the  con- 
tract for  the  burial  of  the  husband  should  not  be  the 
same  as  a  contract  by  the  widow"  for  her  own  personal 
benefit.  Her  coverture  is  at  an  end,  and  so  she  may 
contract;  and  her  infancy  is,  for  the  above  reasons,  no 
defence,  if  the  contract  be  for  her  personal  benefit. 

'=""  It  may  be  observed,  that  as  the  ground  of  r*9no-| 
our  decision  arises  out  of  the  infant's  previous 
contract  of  marriage,  it  will  not  follow  from  it  that  an 
infant  child  or  more  distant  relation  would  be  respon- 
sible upon  a  contract  for  the  burial  of  his  parent  or 
relative." 

More  recently,  it  has  been  held,  in  strict  conformity 
with  this  reasoning,  that  as  the  contract  of  marriage  is 
one  which  it  is  competent  for  an  infant  to  enter  into,  a 
proper  marriage  settlement  upon  an  infant  lady,  even  of 
the  property  of  her  intended  husband,  might  justly  be 
considered  necessary  and  suitable  to  her  state  and  con-' 
dition ;  and  that  consequently  the  preparation  of  such 
settlement  was  beneficial,  and  a  contract  for  preparing 
it  w^as  binding  upon  her.(o) 

There  are,  however,  some  species  of  contracts  which 
the  law  considers  it  so  imprudent  on  the  part  of  an 
infant  to  enter  into,  that  it  will  not  allow  him  to  bind 
himself  by  them  under  any  circumstances.  For  in- 
stance, an  infant  cannot  trade^  and  consequently  cannot 
bind  himself  by  any  contract  having  relation  to  trade. 
We  know,  by  constant  experience,  that  infants  do  in 
fact  trade,  and  trade  sometimes  very  extensively. 
However,  there  exists  a  conclusive  presumption  of  law 
that  no  infant  under  the  age  of  twenty-one. has  discre- 
tion enough  for  that  purpose.     You  will  see  this  laid 

(o)  Helps  V.  Clayton,  34  L.  J.  (C.  P.)  1. 
21 


294  smith's  law  of  contracts. 

p.:.f)q/-|    *clown  in  ^hywall  v.  Champion (j»),   Dilk  v. 

Keigliley.(^)  He  may,  therefore,  recover  back 
in  an  action  for  money  had  and  received  a  sum  which, 
while  an  infant,  he  had  paid  towards  the  purchase  of  a 
share  in  the  defendant's  trade,  (r)  not  having  actually 
received  any  profit  or  benefit  from  the  business.  (5)  If 
he  has  obtained  such  profit,  or  has  derived  advantage 
from  the  business,  so  that  he  cannot  put  the  defendant 
in  the  same  situation  in  which  he  would  have  been  had 
the  contract  not  been  made,  he  cannot  recover  back  the 
money.  (?^)  Some  singular  consequences  follow  from 
this  general  rule ;  for  instance,  a  bill  of  exchange  is  a 
mercantile  contract,  deriving,  as  I  had  occasion  to  ex- 
plain in  the  last  Lecture,  its  peculiar  and  distinguishing 
qualities  from  the  law  merchant.  An  infant,  therefore, 
as  he  cannot  be  a  merchant,  is  not  allowed  to  bind  him- 
self by  becoming  a  party  to  such  an  instrument;  and 
thus,  although  a  young  man  under  the  age  of  twent}^- 
one  may  bind  himself  by  a  contract  to  pay  money  for 
his  necessary  dress,  living,  or  education,  yet,  if  he 
accept  a  bill  for  the  price  of  these  very  articles,  it  \vill 
not  bind  him;  although  b}^  accepting  tile  bill,  he  in  fact 
p..r,qr-|    would  rather  gain  an  advantage,  inasmuch  as 

he  '''would  be  entitled  to  credit  during  the  time 
the  bill  had  to  run.(M)^ 

p)  Str.  1083.  [q)  2  Esp.  480. 

r)  Corpe  v.  Overton,  10  Bing.  (25  E.  C.  L.  R.)  252. 

s)  Holmes  v.  Blogg,  8  Taunt.  (4  E.  C.  L:  R.)  508. 

t)  Corpe  V.  Overton,  supra ;  Holmes  v.  Blogg,  supra;  Ex  parte  Tay- 
lor, in  re  Burrows,  25  L.  J.  (Bptcy.)  35. 

u)  Williams  v.  Harrison,  Garth.  160  ;  Williamson  v.  Watts,  1  Camp. 
552;  Harrison  v.  Cotgrcave,  4  C.  B.  (56  E.  C.  L.  R.)  562;  16  L.  J.  (C. 
P.)  198. 

'  Although  in  AylifFe  v.  Archdale,  Cro.  Eliz.  920,  a  distinction  v^'as 
taken  between  a  bond  with  a  penalty,  given  for  necessaries,  and  an  ob- 
ligation for  the  exact  sum,  yet  it  has  been  since  repeatedly  held,  that 


PERTIES    TO    CONTRACTS.  295 

Again,  he  cannot  bind  himself  by  stating  an  account ; 
althouarh  the  items   of  the  account  be  all  recoverable 


an  infant  is  neither  liable  upon  a  bond,  bill,  or  note,  given  for  neces- 
saries, nor  upon  an  agreement  to  pay  a  certain  sum  for  them,  on  the 
ground  that  the  infant  is  not  to  be  precluded  by  the  form  of  the  con- 
tract, from  his  right  of  showing  the  actual  worth  of  the  articles  :  Earle 
V.  Peale,  Salk.  386,  pi.  2 ;  Probhart  v.  Knouth,  2  Esp.  472  ;  Beeler  v. 
Young,  1  Bibb.  519  ;  M'Crillis  v.  Howe,  3  N.  H.  348;  or.  as  it  should  be 
more  correctly  said,  because  the  only  contract  on  which  an  infant  is 
"liable,  is  the  implied  contract  for  necessaries :  Roof  v.  StaflPord,  7  Cow. 
182 ;  note  to  Tucker  v.  Moreland,  supra.  Nor  is  he  liable  for  money 
lent  to  enable  him  to  procure  necessaries,  on  the  ground  that  the  contract 
arises  upon  the  lending ;  and  the  subsequent  application  of  the  money 
for  necessaries,  cannot,  by  matter  thus-ea;  post  facto,  make  the  contract 
binding:  Earle- w.  Peale;  Walker  v.  Simpson,  7  W.  &  S.  88.  In  equity, 
however,  it  is  considered  that  where  the  money  is  thus  actually  applied, 
the  lender  may  stand  in  the  place  of  the  infant's  creditor,  who  has  been 
satisfied,  and  be  subrogated  to  his  rights  :  Marlow  v.  Pitfield,  1  P. 
Wms.  559;  Beeler  v.'  Young,  Walker  v.  Simpson,  supra;  Best  t\  Man- 
ning, 10  Verm.  230 ;  and,  at  law,  money  paid  at  the  infant's  request 
for  necessaries,  may  be  recovered  under  a  count  for  money  paid :  Ran- 
dell  V.  Sweet,  1  Denio  460;  Coun  v.  Coburn,  7  N.  H.  368;  or,  it  was 
held,  in  Smith  v.  Oliphant,  2  Sand. '306,  under  account  for  monej-  lent 
and  advanced. 

But  although  a  recovery  may  not  be  had  upon  a  note  given  by  an  infant 
for  necessaries,  yet  the  mere  fact  of  the  note  having  been  given,  will  not 
of  course  preclude  the  plaintiff  from  I'ecovering  the  value  of  the  necesr 
saries  which  formed  its  consideration  :  Earle  v.  Reed,  10  Mete.  387 ; 
M'Crillis  v.  Howe,  3  N.  H.  348  ;  M'Minn  v.  Richmond,  6  Yerg.  9. 

The  first  of  these  cases,  however,  went  somewhat  further.  The  plain- 
tiff's declaration  contained  a  count  on  a  promissory  note  given  by  an  in- 
fant, and  an  account  for  goods  sold  and  delivered.  The  plaintiff  gave  the 
note  in  evidence,  and  proved  the  sale,  delivery,  and  value  of  the  neces- 
saries which  formed  its  consideration.  The  remedy  on  the  original  con- 
tract was,  however,  barred  by  the  Statute  of  Limitations,  but  a  local  stat- 
ute in  Massachusetts  prevents,  to  some  extent,  the  bar  of  the  limitation 
act,  in  cases  of  notes  attested  by  a  witness  and  sued  by  the  original  payee, 
which  was  the  case  in  this  instance.  Under  these  circumstances,  it  was 
contended  on  behalf  of  the  defendant,  that  he  was  not  originally  liable 
on  the  note,  under  the  principles  just  stated, — that  never. having  ratified 
it,  it  was  voidable,  and  useless  therefore  in  that  action  for  any  purpose, — 
and  that  the  plaintiff,  when  thrown  back  to  the  consideration  of  the  note, 
could  not  recover  by  reason  of  the  lapse  of  time.     The  Court,  howeVer, 


295  smith's  law  of  contracts. 

against  him  as  for  necessaries,  (x)     Indeed,  in  many  in- 
stances, the  statement  of  an  account  often  requires  so 
very  large  a  share  of  that  kind  of  knowledge  which  is 
derived  from  actual  experience  alone,   that  there  are 
perhaps  few  transactions  for  which  the  young  commonly 
are  less  prepared;  he  cannot  bind  himself,  therefore,  by 
i  stating  an  account.     For  a  similar  reason  an  infant  is 
■  not  bound  by  an  agreement  to  refer  a  dispute  to  arbitra- 
I  tion,(^)  nor  can  he  render  himself  liable  by  borrowing 
feven   to    lay    out   upon   necessaries    the    money   bor- 
|rowed.(0) 

In  Oliver  v.  Woodroffe,  just  cited,  (a)  the  infant  had 
given  a  cognovit  (which,  as  you  are  no  doubt  aware,  is 
an    acknowledgment   by   a   defendant    that   an   action 

[x)  Trueman  v.  Hurst,  1  T.  R.  40;  Ingledew  v.  Douglas,  2  Stark.  (3 
E.  C.  L.  R.)  36 ;  Oliver  v.  Woodroffe,  4  M.  &  W.  650 ;  Williams  v.  Moor, 
11  M.  &  W.  256.  See  London  and  N.  Western  Ry.  Co.  v.  M'Michael,  and 
Binkenhead  Ry.  Co.  v.  Pilcher,  20  L.  J.  (Ex.)  97  ;  5  Ex.  114. 

[y)  Watson  on  Awards,  c.  3,  s.  1. 

[z)  Earle  v.  Peale,  1  Salk.  386  ;  Probart  v.  Knouth,  2  Esp.  472,  note. 

{a)  Note  [x). 

held  that,  as  a  general  principle,  there  was  nothing  to  prevent  an  in- 
fant's liability  on  an  express,  as  well  as  on  an  implied  contract  for  neces- 
saries, provided  the  consideration  were  always  left  open  for  proof  as  to 
reasonableness  of  amount,  &c.,  and  the  Court  saw  no  reason  why  the 
statute  referred  to,  should  not  apply  to  the  case  of  a  note  given  by  a 
minor,  as  well  as  in  the  case  of  an. adult.  The  previous  case  of  Stone  v. 
Dennison,  13  Pick.  1,  had  also  taken  the  ground  that  an  infant  could  be 
liable  on  a  special  contract  for  necessaries,  in  every  case  where  the  con- 
sideration was  thus  subject  to  proof,  and  it  was  said  that  a  contrary  rule 
might  subject  the  infant  to  hardship  in  cases  where,  by  the  terms  of  the 
contract,  the  price  of  the  necessaries  was  less  than  could  be  recovered  on 
a  quantam  valebat.  It  has,  however,  been  observed  of  the  first  of  these 
cases  (by  Mr.  Wallace,  in  the  note  to  Tucker  v.  Moreland,  supra),  that  it 
is  "  inconsistent  with  principle,  as,  in  a  count  on  a  special  and  express 
contract,  all  or  none  should  be  recovered  ;"  and  it  may  be  remarked  of  the 
reason  given  in  Stone  v.  Dennison,  that  the  general  rules  of  law  as  to  in- 
fants are  made  for  their  protection,  and  lose  their  application  when  their 
reason  ceases:  Jefford's  Adm.  v.  Ringgold,  6  Ala.  584. — r. 


1 


PARTIES    TO    CONTRACTS.  296 

brought  against  him  is  rightly  brought,  *and  that  r:i:9Q  c-i 
a  named  sum  is  due  to  the  plaintiff ),  and  it 
was  admitted  that  it  was  given  for  necessaries  supplied 
to  the  infant.  It  was  argued,  that,  as  an  action  might 
have  been  brought  against  him  for  the  necessaries,  he 
ought  to  be  allowed  to  confess  that  action  in  order  to 
save  further  expense.  But  the  Court  of  Exchequer, 
after  considering  the  point,  held  that  the  cognovit  could 
.not  be  enforced  against  the  infant,  because  by  that 
means  a  minor  would  be  made  to  state  an  account, 
w^hich  the  law  w^ill  not  allow  him  to  do  so  as  to  bind 
himself.  If  an  action  be  brought  against  him,  it  is  for 
the  jury  to  determine  the  reasonableness  of  the  demand. 
Again,  the  general  principle  being  that  an  infant  shall  be  • 
bound  by  no  contract  which  is  not  beneficial  to  him,(^)  it 
is  held  that  he  can  engage  in  none  in  which  the  perform- 
ance of  the  contract  is  secured  by  a  penalty;  for  that  it 
cannot  be  for  his  advantage  to  become  subject  to  a  pen- 
alty; and,  therefore  though'  the  old  books  lay  it  down 
that,  he  mav  bind  himself  bv  a  deed  to  pay  foj  neces- 
saries, ic)  yet  it  is  clearly  settled  that  he  cannot  do  so 
By  a  bond  containing  a  penalty,  (f/)  A  variety  of  other 
examples  might  be  given ;  but  I  think  what  I  have  said 
sufficient  to  explain  the  general  nature  of  an  infant's  lia- 
bility and  exemption  from  liability. 

*This  rule  that  an  infant  shall  not  be  allowed  psj.^Qy-j 
to  bind  himself  by  contracts  made  in  trade, 
although,  looking  at  it  with  regard  to  the  present  state 
of  education  and  society,  it  may  appear  not  to  be  so  re- 
quisite as  once  it  was,  yet  looking  at  it  upon  general  prin- 
ciples, it  is  capable  of  being  defended  by  some  strong 

(6)  See  Stikeinan  v.  Da^Yson,  J6  L.  J.  (Ch.)  205. 
(c)  Com.  Dig.  Infant,  B.  5. 

\d)  Ayliff  f.  Archdale,  Cro.  Eliz.  920  ;  Corpe  v.  Overtou,  10  Bing.  (25 
E.  C.  L.  R.)  252. 


:^97  smith's  law  of  contracts, 

arguments.  The  consequences  of  failure  in  trade  are  so 
fatal,  not  merely  to  the  property,  but  often  to  the  repu- 
tation of  the  unsuccessful  trader — and  a  failing  trader  is 
so  often,  in  his  struggles  to  save  himself  from  utter 
shipwreck,  and  to  keep  up  a  good  appearance  in  the 
sight  of  the  world,  induced  to  have  recourse  to  disin- 
genuous and  reprehensible  expedients — that  possibly, 
upon  reflection,  it  may  be  thought  not  unwise  to  guard 
young  persons  up  to  a  certain  point  against  the  acci- 
dents and  temptations  of  mercantile  speculation,  and  to 
ensure  to  them,  as  far  as  possible,  the  advantage  of 
starting  fair  in  life  with  fortunes  unimpaired  and  charac- 
ters unblemished.  How  grievous  would  be  the  situation 
of  a  young  person  beginning  life  at  one-and-twenty  an 
uncertificated  bankrupt.  Against  such  a  chance  the 
law,  as  it  now  stands  effectually  guards  him ;  for,  as 
an  infant  cannot  tradbj  he  cannot  become  bankrupt ; 
and  it  has  been  decided  that  a  fiat  against  him  is 
void.(e) 

r*9QS1  *Now,  therefore,  the  general  rule  being  that 
an  infant  cannot  bind  himself  except  for  neces- 
saries next  comes  the  question — Suppose  he  do,  in  fact, 
enter  into  a  contract  for  something  not  falling  under 
that  denomination,  what  will  be  the  consequence  ?  In 
the  first  place,  no  action  can  be  maintained  against  him 
during  his  infancy  upon  any  such  contract  nor  after- 
wards, unless  he  elect  to  confirm  it;  not  even  although 
by  fraudulently  representing  himself  to  be  of  age  he  in- 
duced the  plaintiff  to  contract  with  him.(/)  But,  in 
the  second  place,  the  contract  is  not  absolutely  void,  but 

(e)  Belton  v.  Hodges,  9  Bing.  (23  E.  C.  L.  R.)  365.  See  Ex  parte  John 
West,  re  W.  &  J.  West,  22  L.  J.  (Bptcy.)  71 ;  Unity  Banking  Ass.  v. 
King,  27  L.  J.  (Bptcy.)  33  ;  Nelson  v.  Stocker,  28  L.  J.  (Ch.)  760. 

(/)  Bartlett  v.  Wells,  31  L.  J.  (Q.  B.)  57  :  De  Roo  v.  Foster,  12  G.  B. 
N.  S.  (104  E.  C.  L.  R.)  272. 


PARTIES    TO    CONTRACTS.  208 

voidable ;  and  therefore  when  he  arrives  at  the  age  of 
twenty-one,  he  may  confirm  it,  and,  if  he  do  so,  he  will 
become  liable  to  an  action  upon  \i.{fy 

I  will  exemplify  this  by  the  case  of  Goode  v.  Har- 
rison. (^)  A  person  of  the  name  of  Goode  entered  into 
a  trading  partnership  with  an  infant  under  the  age  of 
twenty-one,  named  Bennion;  a  third  person,  named  Har- 
rison, supplied  them  with  goods,  and  after  Bennion 
.came  of  age,  he  took  no  step  to  signify  to  the  woyld 
that  he  disclaimed  the  connection  with  Goode,  but,  on 
the  contrary,  allowed  it  to  be  supposed  that  he  was  still 
in  partnership  with  him.     After  this,  Harrison  supplied 

ijlf)  As  to  the  alteration  of  the  law  by  37  &  38  Yict.  c.  62,  which  now 
makes  void  all  conti-acts  entered  into  by  infants  after  the  passing  of  that 
Act,  which  but  foe  that  Act  would  have  been  voidable  only,  see  ante^  p. 
138,  note  {zz). 

ig)  5  B.  &  Aid.  (7  E.  C.  L.  R.)  147  ;  Unity  Banking  Ass.  v.  King, 
supra. 

'  A  defendant  is  not  estopped  from  setting  up  infancy  as  a  defence  to 
an  action  on  a  contract,  by  his  fraudulent  representation  that  he  was  of 
full  age:  Merriam  v.  Cunningham,  11  Cush.  40.  But  see  Prout}^  v.  Ed- 
gar, 6  Clarke  353  ;  Kemp  v.  Cook,  18  Md.  13U. 

As  to  contracts  of  infants  being  only  voidable  and  not  void,  see  Strain 
i..  Wright,  7  Ga.  568  ;  Slocum  v.  Hooker,  13  Barb.  536  ;  Levei-ing  v. 
Ileighe,  2  Md.  Ch.  81*;  West  v.  Penny,  16  Ala.  186;  Ridgeley  v.  Cran- 
dall,  4  Md.  435  ;  Cummings  v.  Powell,  8  Tex.  80;  Ferguson  v.  Bell,  17 
Mo.  347.  The  deed  of  an  infant  is  voidable — not  void.  It  is  good,  there- 
fore, until  disaffirmance  :  Van  Hostrand  v.  "Wright,  Hill  &  Denio  260  ; 
Voorhies  v.  Voorhies,  24  Barb.  150 ;  Pitcher  v.  Laycock,  7  Ind.  398  ; 
Peterson  v.  Laik,  24  Mo.  541  ;  Babcock  v.  Doe,  8  Ind.  110;  Palmer  v- 
Miller,  25  Barb.  399;  Wellborn  v.  Rogers,  24  Ga.  558;  Stuart  v.  Baker, 

17  Tex.  417  ;  Griffith  v.  Schwenderman,  27  Mo.  412  ;  Mustard  v.  Wohl- 
ford,  15  Gratt.  329;  Johnson  v.  Rockwell,  12  Ind.  76;  Magee  v.  Welsh, 

18  Cal.  155;  Blankenship  v.  Stout,  25  111.  132;  Jenkins  v.  Jenkins,  12 
Iowa  195 ;  Stait  v.  Plaistead,  43  N.  H.  413.  An  infant's  voidable  deed 
may  be  ratified  not  only  by  express  affirmance,  but  by  omission  to  dis- 
affirm within  a  reasonable  time:  Hastings  u.  Dollarhide,  24  Cal.  195. 
Also  by  any  deliberate  act  by  which  he  takes  benefit  under  it,  or  recog. 
nises  its  validity  after  he  comes  of  age :  McCormic  v.  Leggett,  8  Jones 
(Law)  425. 


299  smith's  law  of  contracts. 

P=9QQ1  *^o^^^^  ^^'i^^^  more  articles,  and  brought  an 
action  against  him  for  the  price,  jointly  with 
Bennion,  as  a  co-defendant.  Bennion  set  up  his  infancy, 
and  urged  that,  as  an  infant  cannot  bind  himself  by  a 
contract  made  in  the  course  of  trade,  his  agreement, 
while  under  age,  to  become  Goode's  partner,  was  not 
binding  upon  him,  and  consequently,  that  not  being 
Goode's  partner,  he  was  not  liable  for  the  articles  sup- 
plied to  him.  On  the  other  hand,  it  was  urged  that, 
admitting  the  partnership  contracted  while  he  was  an 
infant  to  be  voidable,  it  was  nevertheless  in  his  option, 
when  he  arrived  at  his  full  age  of  one-and-twenty,  to 
adopt  and  confirm  it ;  that  by  his  conduct  he  had  done 
so ;  and  that  consequently  he  was  liable  for  the  goods 
supplied  afterwai'ds.  The  question  was  argued,  as  you 
may  suppose,  with  great  ability,  the  counsel  being  Mr. 
Baron  Parke  and  the  late  Mr.  Justice  Littledale.  The 
Court  decided  in  favor  of  the  plaintiff.  The  principle 
is  clearly  and  strictly  laid  down  in  the  judgment  of  Mr. 
Justice  Bay  ley : — "^  It  is  clear,"  says  his  Lordship,  "that 
an  infant  may  be  in  partnership.  It  is  true  that  he  is 
not  liable  for  contracts  entered  into  during  his  infancy ; 
but  still  he  may  be  a  partner.  If  he  is  in  point  of  fact 
a  partner  during  his  infancy,  he  may,  when  he  comes  of 
age,  elect  whether  he  will  continue  that  partnership  or 
not.  If  he  continue  the  partnership,  he  will  then  be 
liable  as  a  partner.^    If  he  dissolve  the  partnership,  and 

^  A  question  may  here  arise  as  to  the  extent  of  the  liability  for  the  pre- 
vious debts  of  the  firm,  and  in  Miller  u.' Sims,  2  Hill  (S.  C.)  479,  it  was 
held  that  inasmuch  as  in  general  one  partner  could  bind  the  firm  by  con- 
tracts made  -without  the  knowledge  of  the  other,  to  say  that  one  may 
enter  into  or  affirm  a  partnership  without  incurring  these  liabilities, 
would  be  to  say  that  one  may  affirm  a  contract  of  partnership  and  dis- 
affirm that  which  is  inseparably  incident  to  it,  and  the  defendant,  who 
had,  by  his  acts  of  receiving  partnership  funds,  &c.,  affirmed  a  partner- 


PARTIES    TO   CONTRACTS.  300 

if  when  of  age  he  take  the  *proper  means  to  let  p,:.or.-~j-i 
the  world  know  that  the  partnership  is  clis-  ^  -I 
solved,  then  he  will  cease  to  be  a  partner." 

It  is  easy  to  apply  this  mode  of  reasoning  to  any  other 
sort  of  contract,  (/i)  Thus,  if  he  makes  a  lease  of  his 
land,  which  is  binding  if  for  his  benefit,  but  not  other- 
wise, and  after  majority  accepts  rent,  and  by  other  acts 
affirms  the  contract,  this  is  strong  evidence  that  the 
lease  is  beneficial  and  binding ;  (^ )  or  if  an  infant  lessee 
remains  in  possession  of  the  house  or  land  demised,  and 
pays  rent  after  majority,  he  cannot  repudiate  it  after- 
wards, but  it  is  confirmed  from  the  beginning.  (/)  This 
head  of  law. has  been  much  and  elaborately  considered 
in  several  recent  cases,  in  which  the  liability  of  an  in- 
fant holder  of  railway  shares  to  pay  the  calls  upon  them 
has  been  in  dispute.  The  arguments  and  judgments  in 
these  cases  (which  are  cited  below)  demand  a  very 
careful  perusal,  and  will  amply  repay  it  in  the  very  full 
view  which  they  give  of  the  principle  now  under  dis- 
cussion, and  the  application  of  it.  Assuming,  according 
to  the  opinion  of  the  Court  of  Exchequer,  that  the  ques- 
tion of  the  infant's  liability  does  not  depend  conjointly 
upon  the  Act  creating  the  company,  and  upon  the  Com- 
panies ^Clauses  Consolidation  Act,  8  &  9  Vict.  p.:.or^-|-i 
c.  16,  but  upon  the  Common  Law,  it  has  been    L  '      J 

{h)  Southerton  v.  Whitelock,  1  Str.  690. 

[i)  Shep.  Touch.  268  ;  Ashfield  v.  Ashfield,  Sir  W.  Jones  157. 
{j)  Ketsey's  case,  Cro.  Jac.  320 ;  Holmes  v.  Blogg,  8  Taunt.  (4  E.  C. 
L.  R.)  35.     See  Ex  parte  Taylor,  in  re  Burrows,  25  L.  J.  (Bptcy.)  35. 

ship,  begun  while  he  was  yet  an  infant,  was  therefore  held  liable  on  a 
note  given  by  the  other  partner,  before  such  affirmation,  of  which  he  had 
no  knowledge,  and  which  he  refused  to  pay  when  informed  of  it.  A 
decision,  apparently  to  the  contrary,  in  Crabtree  v.  May,  1  B.  Mon.  289, 
will,  on  examination,  be  found  to  have  turned  on  the  insufficiency  of  the 
replication. — r. 


301  smith's  law  of  contracts. 

repeatedly  decided,  that,  where  an  infant  becomes  the 
holder  of  shares  by  his  own  contract  and  subscription, 
he  is  prima  facie  liable  to  pay  the  calls ;  [k)  he  may  re- 
pudiate that  contract  and  subscription,  and  if  he  does 
so  while  an  infant,  although  he  may  on  arriving  at  full 
age  affirm  his  repudiation,  or  receive  the  profits,  it  is 
for  those  who  insist  upon  his  liability  to  make  out  these 
facts.  (/)  Infants  having  become  shareholders  in  railway 
companies,  have  been  held  liable  to  pay  calls.  "  They 
are  purchasers,"  said  the  Court  of  Exchequer  in  The 
London  and  North  Western  Railway  Company  v. 
M 'Michael,  "  who  have  acquired  an  interest  not  in  a 
mere  chattel,  but  in  a  subject  of  a  permanent  nature, 
either  by  contract  with  the  Company,  or  by  devolution 
from  those  who  have  so  contracted,  and  with  an  obliga- 
tion attached  to  it  which  they  are  bound  to  discharge, 
and  have  been  thereby  placed  in  a  situation  analogous 
to  an  infant  purchaser  of  real  estate,  who  has  taken  pos- 
session, and  thereby  become  liable  to  all  the  obligations 
attached  to  the  estate;  for  instance,  to  pay  rent  in  case 
of  a  lease  rendering  rent,  or  to  pay  a  fine  due  on  an  ad- 
poAQ-i  mission  in  the  case  of  *copyhold,  to  which  an 
infant  has  been  admitted,  (w^)  unless  they  have 
elected  to  waive  or  disagree  to  the  purchase  altogether, 
either  during  infancy  or  after  full  age,  at  either  of  which 
times  it  is  equally  competent  for  an  infant  so  to  do." 
Thus,  where  there  has  been  no  waiver  or  repudiation, 
the  infant  continues  liable  to  pay  the  calls ;  and  where 
the  infant  avoids  the  contract  for  purchase  during 
minority,  he  is  not  liable.     If,  after  full  age,  the  party 

{k)  London  and  North  Western  Ry.  Co.  v.  M'Michael,  20  L.  J.  (Ex.) 
97 ;  5  Ex.  114.  See  Cork  and  Bandon  Ry.  Co.  v.  Cazenove,  10  Q.  B.  (59 
E.  C.  L.  R.)  935. 

[1]  IVewry  and  Enniskillen  Ry.  Co.  v.  Coombe,  3  Ex.  5C5. 

(m)  Evelyn  v.  Chichester,  3  Burr.  1717. 


PARTIES    TO    CONTRACTS.  302 

repudiates  a  contract  made  during  his  infancy,  it  may 
be  gathered  from  what  has  been  said,  and  indeed  hardly 
requires  stating,  that  he  must  do  so  within  a  reasonable 
time  after  he  comes  of  age.{n)  Howeyer,  in  order  to 
prevent  persons  from  inconsiderately  confirming  con- 
tracts made  by  them  during  infancy,  and  to  obviate  the 
danger  of  attempts  to  foist  such  confirmation  on  them 
by  false  evidence,  it  is  enacted,  as  we  have  already 
seen,((?)  by  9  Geo.  IV.  c.  14,  s.  5,  that  no  action  shall 
be  maintained  whereby  to  charge  any  person  upon  any 
promise  made,  after  full  age,  to  pay  any  debt  contracted 
during  infancy,  or  upon  any  ratification  after  full  age 
of  any  promise  or  simple  contract  made  during  infancy, 
unless  such  promise  or  ratification  shall  be  made,  by 
some  writing,  signed  by  the  party  to  be  charged  there- 
with, (oo)^ 

(n)  Dublin  and  Wicklow  Ry.  Co.  v.  Black,  22  L.  J.  (Ex.)  94;  8  Ex. 
181,  s.  c. 

(o)  See  ante^  pp.  138-140,  as  to  this  section,  and  the  decisions 
upon  it. 

(wo)  See,  however,  now  37  &  38  Vict.  c.  62,  s.  2,  which  enacts  that  "  no 
action  shall  be  brought  whereby  to  chara;e  any  person  upon  any  promise 
made  after  full  age  to  pay  any  debt  contracted  during  infancy,  or  upon 
any  ratification  made  after  full  age  of  any  promise  or  contract  made 
during  infancy,  whether  there  shall  or  shall  not  be  any  new  consider- 
ation for  such  promise  or  ratification  after  full  age."  See  also  ante^  p. 
138,  note  (zz). 

^  It  has  been  seen  in  a  former  part  of  these  Lectures,  that  any  acknowl- 
edgment, not  inconsistent  with  a  promise  to  pay,  such  as  a  partial  pay- 
ment, will  be  sufficient  to  remove  the  bar  of  the  Statute  of  Limitations. 
It  is  not  so,  however,  with  respect  to  the  ratification  of  contracts  made 
during  infancy.  There  must  either  be  a  direct  affirmation  (as  in  the  case 
cited,  supra,  by  continuing  the  business,  or,  in  the  case  of  a  chattel,  by 
retention  of  the  possession,  selling  it  again,  or  the  like:  see  Lawson  v. 
Lovejoy,  8  Greenl.  405  ;  Aldrich  v.  Grimes,  10  N.  H.  194  ;  Kline  v.  Beebe, 
6  Conn.  494;  Boyden  v.  Boyden,  9  Mete.  519;  Thomasson  v.  Boyd,  13 
Ala.  419 ;  Merreweather  v.  Herran,  7  B.  Men.  162)  ;  or  an  express  prom- 
ise to  pay,  made  voluntarily,  with  full  knowledge  of  the  liability  thus 


303  smith's  law  of  contracts. 

r^'^n^-i  *Now,  then,  such  being  the  effect  of  an  in- 
fant's contracts  with  regard  to  the  infant  him- 
self, it  remains  only  to  say  a  word  or  two  as  to  their 
effect  on  the  other  contracting  party.  And,  as  <io  him, 
the  rule  is,  that  he  is  hound  though  the  infant  is  not ;  for, 
to  use  the  words  in  which  the  rule  is  stated,  in  Bacon's 
Ab.,  "  Infancy,"  I.  4, — "  Infancy  is  a  personal  privilege 
of  which  no  one  can  take  advantage  but  the  infant  him- 
self; and,  therefore,  though  the  contract  of  the  infant 
be  voidable,  yet  it  shall  bind  the  person  of  full  age ;  for, 
being  an  indulgence  which  the  law  allows  infants,  to 
secure  them  from  the  fraud  and  imposition  of  others,  it 
can  only  be  intended  for  their  benefit,  and  is  not  to  be 
extended  to  persons  of  the  years  of  discretion,  who  are 
presumed  to  act  with  sufficient  caution  and  security. 

incurred,  made  to  the  party  himself  or  his  agent,  and  not  to  a  mere 
stranger  having  no  interest:  Hinely  v.  Margaritz,  3  Barn.  428  ;  Ford  v. 
Phillips,  1  Pick.  202  ;  Pierce  v.  Tobey,  5  Mete.  168  ;  Hale  v.  Gerrish,  5 
N.  H.  374 ;  Millard  v.  Hewlett,  19  Wend.  301  ;  Wilcox  v.  Roath,  12  Conn. 
551 ;  a  mere  acknoivledgment  or  partial  payment  will  not  suffice :  Good- 
sell  V.  Myers,  3  Wend.  481  ;  Robbins.w.  Eaton,  10  N.  H.  561  ;  Hinely  v. 
Margai-itz,  supra ;  for  the  law  will  imply  no  promise  in  the  case  of  an 
infant,  as  has  been  seen,  except  for  necessaries. — r. 

The  special  contract  of  a  minor  is  ratified  by  his  continuance  in  it  for 
a  month  after  his  majority,  and  cannot  afterwards  be  avoided  :  Forsyth 
V.  Hastings,  1  Wms.  646  ;  New  Hampshire  Ins.  Co.  v.  Noyes,  32  N.  H. 
345 ;  Hodges  v.  Hunt,  22  Barb.  150 ;  Little  v.  Duncan,  9  Rich.  (Law)  55; 
Baxter  v.  Bush,  3  Wms.  465 ;  Hartman  v.  Kendall,  4  Ind.  403 ;  Emmons 
V.  Murray,  16  N.  H.  385.  A  voidable,  contract  of  an  infant  cannot,  after 
his  coming  of  age,  be  ratified  by  a  mere  acknowledgment  of  the  debt, 
but  a  direct  promise  to  pay  or  a  direct  confirmation  will  be  evidence  of 
such  ratification :  Conklin  v.  Ogborn,  7  Ind.  553 ;  Reed  v.  Boshears, 
4  Sneed  168  ;  Chandler  v.  Glover,  32  Penn.  St.  509  ;  Mayer  v.  M'Lure, 
36  Miss.  389 ;  Vaughan  v.  Parr,  20  Ark.  600  ;  Proctor  v.  Sears,  4  Allen 
95. 

As  to  what  will  amount  to  ratification :  West  v.  Penny,  16  Ala.  186  ; 
Levering  v,  lleighe,  2  Md.  Ch.  81  ;  Williams  v.  Mabee,  3  Halst.  Ch.  500 ; 
Miles  V.  Lingerman,  24  Ind.  385  ;  Petty  v.  Roberts,  7  Bush  410  ;  Highley 
V.  Barrow,  49  Me.  103 ;  Baker  v.  Kennett,  54  Mo.  82. 


PARTIES    TO    CONTRACTS.  303 

And,  were  it  otherwise,  this  privilege,  instead  of  being 
an  advantage  to  the  infant,  would  in  many  cases  turn 
greatly  to  his  detriment."^  Thus,  for  instance,  in  Holt 
V.  Ward,(jK>)  a  gentleman  of  full  age  had  promised  to 
marry  a  minor.  It  was  decided  that  she  might  main- 
tain an  action  against  him  for  breach  of  promise,  though 
he  could  not  have  done  so  had  she  refused  to  perform 
her  side  of  the  contract.^  Again,  (§')  an  infant  was 
allowed  to  maintain  an  action  on  a  contract  to  purchase 
a  crop,  on  which  no  action  could  have  been  maintained 
against  him,^ 

{p)  2  Str.  937.  (?)  Warrick  v.  Bruce,  2  M.  &  Sel.  205. 

^  Infancy  is  a  -personal  privilege,  and  cannot  be  set  up  by  third  per- 
sons to  avoid  the  contracts  of  the  infant:  Alsworth  v.  Cordtz,  31  Miss. 
32;  Wilson  v.  Porter,  13  La.  An.  407;  Jones  v.  Butler,  30  Barb.  641. 
The  contract  of  an  infant  may  be  avoided  by  those  only,  besides  himself, 
who  are  privy  in  blood  or  estate :  Nelson  v.  Eaton,  1  Red.  49S. 

''■  The  case  was  four  times  argued :  see  the  report  in  Fitzgib.  175,  275 ; 
and  the  decision  was  recognised  by  Lord  Ilardwicke,  in  Harvey  v.  Ash- 
ley, 3  Atk.  610,  and  on  this  side  of  the  Atlantic,  the  decisions  in  Iluntr. 
Peake,  5  Cow.  475  ;  Willard  v.  Stone,  7  Ibid.  22,  and  Carman  i\  Ashbury, 
1  Marsh.  78,  were  based  on  its  authority. — r. 

^  But  liberal  as  is  the  law  towards  infants,  it  does  not  allow  them  to 
retain  the  possession  of  property,  and  still  repudiate  the  contract  by 
which  that  possession  has  been  obtained  ;  and  as  by  the  avoidance  of  the 
contract  the  property  revests  in  the  vendor,  the  latter  may  bring  trover, 
replevin,  or  detinue :  Mills  v.  Graham,  4  B.  &  P.  140 ;  Badger  v.  Phin- 
ney,  15  Mass.  359  ;  Boyden  v.  Boyden,  9  Mete.  519  ;  Jefford  v.  Ringgold, 
6  Ala.  544.  And  so  with  respect  to  real  estate ;  he  cannot  disaffirm  se- 
curities given  for  the  purchase-money,  and  still  claim  the  land  under  his 
deed  :  Weed  v.  Beebe,  21  Verm.  495.  If,  however,  the  goods  have  been 
wasted,  sold  or  otherwise  disposed  of  by  the  infant  after  the  coming  of 
age,  these  acts,  as  we  have  seen,  amount  to  an  affirmation  of  the  con- 
tract, and  he  will  then,  the  bar  of  infancy  being  thus  removed,  be  liable 
upon  the  contract ;  but  if  the  goods  have  been  wasted  or  sold  during  in- 
fancy, neither  trover  nor  detinue  will  lie,  for  a  i-efusal  after  age  to  de- 
liver, when  he  has  not  the  goods,  is  no  conversion :  Fitts  v.  Hall,  9  N. 
H.  441  ;  Boody  v.  M'Kenney,  23  Me.  517  ;  and  detinue  does  not  lie  where 
the  goods  have  been  parted  with  in  a  manner  authorized  by  law :  Pool 
V.  Adkisson,  1  Dana  110. 

Upon  the  subject  of  an  infants  liability  for  torts,  the  manner  in  which 


304  smith's  law  of  contracts. 

r*^041  *"'"  ^^^  come  to  the  second  class  of  persons 
on  whose  capacity  to  contract  I  think,  it  neces- 
sary to  observe.  I  mean  that  of  quarried  women.  It 
must  now,  however,  be  borne  in  mind  that  the  Common 
mori  Law  has  of  late,  in  their  case,  been  qualified  by  the 
provisions  of  the  "Married  Women's  Property  Act 
1870"  (33  &  34  Vict.  c.  93),  which  came  into  operation 
on  the  9th  of  August  1870.  But  this  Act  has  been 
amended  by  the  "  Married  Women's  Property  Act 
(1870)  Amendment  Act,  1874"  (37  &  38  Vict.  c.  50), 
in  the  case  of  marriages  taking  place  after  the  30th  of 
July  1874. 

Now  a  contract  by  or  with  a  married  woman  is  one  of 
two  sorts  :  it  is  either  a  contract  Avhich  she  entered  into 
hefore  her  marriage,  and  which  continued  in  existence 
afterw^ards  ;  or  it  is  a  contract  which  she  entered  into 
subsequently  to  her  marriage. 

Now,  with  regard  to  the  former  description  of  con- 
tracts, I  will  dispose  of  them  in  a  few  words.  By  the 
Common  Law,  unqualified  by  the  provisions  of  the 
above-mentioned  Act,  upon  the  marriage,  the  benefit  of, 


he  is  made  a  party  to  an  action,  and  many  other  important  bi*anches  of 
this  subject,  the  student  is  again  referred  to  the  note  to  Tucker  v.  More- 
land,  1  Am.  Lead.  Cas. — r. 

An  infant  cannot  rescind  a  contract,  and  bring  an  action  to  recover  the 
value  of  the  property  parted  with,  without  restoring  to  the  other  party 
the  value  with  which  he  parted  :  Bailey  v.  Bamberger,  11  B.  Mon.  113  : 
Womack  v.  Womack,  8  Tex.  397.  In  a  suit  by  an  infant  for  the  con- 
sideration of  a  contract  avoided  by  him  he  must  show  a  return  of  the 
property  sold  to  him,  if  it  remains  in  his  possession.  But  its  entire  con- 
sumption or  great  deterioration  by  him  is  no  defence  to  the  action  :  Price 
V.  Furman,  1  Wms.  268  ;  Manning  v.  Johnson,  26  Ala.  446  ;  Craighead 
V.  Wells,  21  Mo.  404;  Burns  v.  Hill,  19  Ga.  22;  Aldrich  v.  Abraham, 
Hill  &  Denio  423 :  Tipton  v.  Tipton,  3  Jones  (Law)  552  ;  Pitcher  v.  Lay- 
cock,  7.1nd.  398  ;  Wilhelm  v.  Hardman,  13  Md.  140;  Kilgore  v.  Jordan, 
17  Tex.  341 ;  Mustard  v.  Wohlford,  15  Gratt.  329  ;  Locke  v.  Smith,  41  N. 
H.  346 ;  Pursley  v.  Hays,  17  Iowa  311. 


PARTIES    TO    CONTRACTS.  304 

and  the  liability  to,  the  wife's  contracts  made  before 
marriage,  vest  in  the  husband,  and  continue  vested  in 
him  during  the  continuance  of  the  marriage,  (r).  If  she 
die  before  they  are  enforced,  and  he  survive  her,  he  is 
entitled  to  the  benefit  of  such  contracts,  not  in  his  own 
right,  but  as  her  administrator,  (5)^  and  is  liable  to 
be  sued  on  them,  not  in  his  individual  capacity, 
*but  as  his  wife's  administrator.  Thus,  in  an  r:=:oQK-| 
action  on  a  promissory  note,  brought  by  the 
administrator  of  Ann  Hart,  it  was  proved  that  it  was 
made  by  the  defendant  and  delivered  by  him  to  Ann 
Hart,  who  was  then  a  feme  sole,  but  who  afterwards 
married  William  Hart  (not  her  administrator),  and  died 
intestate  in  his  lifetime.  The  Court  held  that  the  note 
clearly  did  not  become  the  property  of  William  Hart, 
but  passed  to  the  plaintiif  as  her  administrator ;  and 
that  the  husband,  not  having  obtained  administration  to 
his  wife,  had  no  interest  in  the  note.(/)     If  she  survive 

()•)  Mitchinson  v.  Hewson,  7  T.  R;  348  ;  Com.  Dig.  tit.  "  Baron  and 
Femme;'  E.  3.  See  Milner  v.  Milnes,  3  T.  R.  627  ;  Sel.  N.  P.  344, 
12th  ed. 

(s)  Betts  V.  Kimpton,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  273. 

\t)  Hart  V.  Stephens,  6  Q.  B.  (51  E.  C.  L.  R.)  937. 


»  Collins  V.  Hoxie,  9  Paige  81  :  Hunter  v.  Hallett,  1  Edwards'  Ch.  388  : 
Coleman  v.  Waples,  1  Harring.  196.  So  that  if  the  husband  die  without 
having  taken  out  letters  of  administration,  his  administrator  cannot  re- 
cover her  choses  in  action,  but  administration  must  be  taken  out  to  the 
wife  :  Betts  v.  Kimpton,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  273  ;  and  Lord  Ten- 
terden  well  observes  in  that  case  that  the  question  is  not  who  is  actually 
entitled  to  the  property,  but  who  has  the  right  to  sue  for  it ;  for  although 
the  Litter  right  is  vested  in  the  representative  of  the  wife  alone,  yet  he 
is  considered  in  equity  as  a  trustee  for  the  representative  of  the  hus- 
band :  Squib  v.  Wyn,  1  P.  AVms.  368  ;  Stewart  v.  Stewart,  7  Johns.  Ch. 
R.  229.  If,  however,  the  husband  has  taken  out  letters  of  administra- 
tion to  his  wife's  estate,  and  die  before  its  full  administration,  his  repre- 
sentative is,  in  the  absence  of  any  statutory  enactment,  entitled  to 
administration  de  bonis  non:  Donnington  v.  Mitchell,  1  Green's  Ch. 
346. — R. 


305  smith's  law  of  contracts. 

hiin,  her  right  to  the  benefit  of,  and  her  liability  upon, 
such  contract  revives,  assuming  always  that  nothing  has 
been  done  to  put  an  end  to  the  contract  during  the  con- 
tinuance of  the  marriage,  (m)^  "With  respect  to  debts 
due  to  the  wife  dum  sola,  the  husband,"  says  Lord  Ellen- 
borough,  "  is  her  irrevocable  attorney,  if  I  may  so  say  : 
and  if  he  reduce  them  into  possession  during  the  covert- 

[u)  Rumsey  v.  George,  1  M.  &  Sel.  J 76  ;  Fitzgerald  v.  Fitzgerald,  8  C. 
E.  (65  E.  C.L.  R.)  592. 

^  Blount  V.  Besland,  5  Ves.  315;  Schuyler  v.  Hoyle,  5  -Johns.  Ch.  196  ; 
Hayward  v.  Hayward,  20  Pick.  517  ;  Strong  v.  Smith,  1  Met.  476  ; 
W^eeks  «.  Weeks,  5  Ired.  Eq.  Ill,  where  the  previous  cases  in  North 
(Jai-olina  are  noticed.  The  result  of  these  principles,  then,  briefly  is, 
that  for  all  the  debts  of  the  wife  contracted  before  marriage,  no  matter 
how. improvident  they  may  be,  the  husband  is  personally  liable  during 
coverture,  and  no  longer,  and  this  though  he  may  not  have  received  a 
cent  by  her  ;  and,  on  the  other  hand,  upon  her  death,  his  personal  liability 
for  her  debts  contracted  before  marriage  is  wholly  wiped  out,  though  he 
may  have  received  a  fortune  by  her.  The  apparent  injustice  of  this 
latter  rule,  than  which  nothing  is  better  settled  (Tabb  v.  Boyd,  4  Call 
453  ;  Buckner  v.  Smyth,  4  Dessauss.  371  ;  Witherspoon  v.  Dubose, 
1  Bailey  Ch.  166),  has  often  been  strongly  urged,  and  equity  been  in- 
voked to  modify  it,  and  Lord  Nottingham  is  reported  to  have  said,  with 
some  earnestness,  that  "  he  would  alter  the  law  on  that  point"  (Freeman 
V.  Goodham,  Ch.  R.  295)  ;  but  in  Heard  v.  Stamford,  Cas.  temp.  Talbot, 
s.  c.  3  P.  Wms.  411,  the  Chancellor  said,  "  It  is  extremely  clear  that  by 
law  the  husband  is  liable  for  the  wife's  debts  only  during  the  coverture, 
unless  the  creditor  recovers  judgment  against  him  in  the  wife's  lifetime, 
and  I  do  not  see  how  anything  le§s  than  an  act  of  Parliament  can  alter 
the  law.  If  I  relieve  against  the  husband  because  he  had  sufficient 
assets  with  his  wife  wherewith  to  satisfy  the  demand  in  question,  by  the 
same  reason,  where  a  feme  indebted  duTti  sola  marries,  bringing  no  for- 
tune to  her  husband,  and  judgment  is  recovered  against  the  husband, 
after  which  the  wife  dies,  I  ought  to  grant  relief  to  the  husband  against 
such  judgment,  which  yet  is  not  in  my  power,  consequently  there  can 
be  no  ground  for  a  court  of  equity  to  interpose  in  the  present  case  ;  and 
if  the  law,  as  it  now  stands,  be  thought  inconvenient,  it  will  be  a  good 
reason  for  the  legislature  to  alter  it,  but  till  that  is  done,  what  is  law  at 
present  must  take  place."  See  to  the  same  eflFect  the  .remarks  of  Lord 
Redesdale,  while  Chancellor  of  Ireland,  in  Adair  v.  Shaw,  2  Sch.  &  Lef. 
263.— R. 


1 


PARTIES    TO   CONTRACTS.         .  305 

lire,  they  become  his  debt,  but  until  that  is  doue  they 
remain  the  debt  of  the  wife ;  and  all  these  cases  agree 
that  in  the  event  of  his  death,  they  would  survive  to 
her."  The  Court,  therefore,  held  that  the  husband  alone 
could  not  be  petitioning  creditor  upon  the  bankruptcy 
of  a  debtor  of  his  wife,  who  became  her  debtor  before 
her  marriage.  (:?.•)  And  the  Court  of  *Exche-  r:i:or|p-| 
quer  has,  upon  the  same  ground  of  survivorship 
in  the  wife,  decided  that  if  the  husband  become  bank- 
rupt, his  assignees  cannot  sue  in  their  own  names  alone 
upon  a  promissory  note  given  to  the  wife  before  mar- 
riage. (.^)^ 

During  the  marriage  the  husband  may,  as  I  have 
said,  sue  or  be  sued  upon  his  wife's  contracts,  made 
while  she  Avas  a  single  woman ;  but  if  she  sue  he  must 
join  her  as  co-plaintiff;  and  if  he  be  sued,  she  must  be 
joined  as  a  co-defendant.  (5')'^ 

Such  is  shortly  the  state  of  the  Common  Law  regard- 
ing the  effect  of  marriage  on  the  contracts  made  by  the 
wife  while  single.  There  is  one  case,  indeed,  in  which 
the  husband  may  sue  upon  a  contract  made  with  her 
while  single,  without  joining  her  as  a  co-plaintiff.  This 
is  where  a  bill  of  exchange  or  promissory  note  has  been 
given  to  her  ;  in  which  case  his  suing  upon  it  in  his  own 
name  is  an  election  to  take  it  to  himself  and  a  dissent  to 

(a;)  Rurnsey  v.  George,  supra. 

iy)  Sherrington  t\  Yates,  12  M.  &  W.  855;  Dingley  t\  Robinson,  26 
L.  J.  (Ex.)  55. 

(z)  Rumsey  v.  George,  1  M.  &  Sel.  180  ;  Milner  v.  Milnes,  3  T.  R.  627  ; 
Pittam  V.  Foster,  1  B.  &  C.  (8  E.  C.  L.  R.)  248. 

^  Shay  V.  Sessamen,  10  Penn.  St.  432;  Eshleman  v.  Sherman,  13 
Penn.  St.  563. — r. 

-  And  even  this  although  the  husband  make  a  subsequent  promise  ; 
unless,  of  course,  such  promise  be  based  upon  a  new  consideration  of 
benefit  to  himself  or  inconvenience  to  the  creditor:  Waul  v.  Kirkuuin, 
1.5  Sm.  &  Marsh.  599.— R. 
22 


306  smith's  law  of  contracts. 

his  wife's  having  any  interest  in  it,  an  election  which,  as 
will  be  seen  hereafter,  a  husband  has  with  respect  to  his 
wife's  choses  in  action,  and  which  the  peculiar  nature  of 
a  j)romissory  note  enables  him  to  make,  by  merely  suing 
on  it.  For  the  wife  could  not,  after  marriage,  indorse 
the  note,  and  it  would  be  nugatory  for  the  husband  to 
P^oA'— I  ^indorse  to  himself.  But  he  may,  if  he  pleases, 
leave  it  as  it  is,  and  then  the  remedy  on  it  sur- 
vives to  the  ^^^ife.{ay 

The  Common  Law,  however,  as  regards  the  liability 
of  the  husband  to  the  wife's  contracts  made  before  mar- 
riage, has  been  altered  by  the  Married  Women's  Pro- 
perty Act,   1870    (33  &  U  Vict.   c.  93),   where  the 
marriage  has  taken  place  after  that  Act  come  into  ope- 
ration ;(^)   and  by  sect.  12  of  that  Act,  the  husband, 
'>.«<'     w^here  the  marriage  has  so  taken  place,  is   no  longer 
liable  for  the  debts  of  his  wife  contracted  before  mar- 
riage.    The  wife,  however,  is  liable  to  be  sued  for  them, 
,     (     */^dnd  any  property  belonging  to  her  for  her  separate  use 
[y^    i  is  liable  to  satisfy  such  debts  as  if  she  had  continued 


1 


¥ 


/ 


W 


unmarried.     But  this  Act  has   been  amended  by  the 

\a)  Gaters  v.  Madeley,  6  M.  &  W.  423.  See  M'Neilage  v.  Holloway, 
1  B.  &  Aid.  218  ;  Howard  v.  Oakes,  3  Ex.  136. 

(&)  It  came  into  operation  on  the  9th  of  August,  1870. 

^  But  this  decision  of  Lord  Ellenborough  has  been  overruled,  and  it  is 
now  settled  that  a  promissory  note  is,  in  the  ordinary  course  of  things, 
a  chose  in  action,  and  there  is  nothing  to  take  it  out  of  the  common  rule 
that  choses  in  action  survive  to  the  wife  after  the  death  of  her  husband, 
unless  he  has  reduced  them  into  possession :  and  it  is  believed  to  be  a 
rule  without  exception  that  a  husband  can  not  sue  alone  to  recover  any 
chose  in  action  belonging  to  the  wife  he/ore  marriage  :  Fenner  r.  Flas- 
ket, Moore  422  :  Kichards  v.  Richards.  2  B.  &  Ad.  (22  E.  C.  L.  R.)  447  ; 
Graters  v.  Madeley.  6  M.  &  AVels.  427  ;  Sherrington  v.  Yates,  12  Ibid. 
855  ;  Hart  v.  Stephens,  6  Q.  B.  (51  E.  C.  L.  R.)  937  ;  Morse  c.  Earl,  13 
Wend.  271  ;  Clapp  v.  Stoughton,  10  Pick.  470  ;  Johnston  r.  Pastern. 
Cam.  &  Nor.  464.— r. 


PARTIES    TO   CONTRACTS.  307 

"Married  Women's  Property  Act  (1870)  Amendment 
Act,  1874"  (37  &  38  Vict.  c.  50),  which  was  passed  on 
the  30th  July  1874  ;  the  1st  section  of  which  enacts 
that  "  so  much  of  the  Married  Women's  Property  Act 
1870,  as  enacts  that  a  husband  shall  not  be  liable  for 
the  debts  of  his  wife  contracted  before  marriage  is  re- 
pealed, so  far  as  respects  marriages  which  shall  take 
f)lace  after  the  passing  of  this  Act,  and  a  husband  and 
wife  married  after  the  passing  of  this  Act  may  be  jointly 
sued  for  any  such  debt."  The  Amendment  Act,  how- 
ever, limits  the  husband's  liability  for  such  debts  to  the 
extent  of  his  interest  in  his  wife's  property,  as  defined 
in  section  5  of  that  Act.  See  also  ss.  2,  3  and  4.  Under 
sect.  11  also  of  the  same  Act,  a  married  woman  may  now 
maintain  an  action  in  her  own  name  for  the  recovery  of 
any  property  belonging  to  her  before  marriage,  and 
which  her  husband  shall,  by  writing  under  his  hand, 
have  agreed  with  her  shall  belong  to  her  after  marriage 
as  her  separate  property.  This  section  contains  no  limi- 
tation as  to  the  date  of  the  marriage  , 

Next  as  to  contracts  entered  into  by  a  married  woman 
subsequently  to  her  marriage.  The  law  as  to  these  con- 
tracts also  has  been  somewhat  altered  by  the  Married 
Women's  Property  Act,  as  we  *shall  see  after-  ri^o/^o-i 
wards.  But  it  is  a  general  rule  of  Common 
Law,  that  a  married  woman  cannot  bind  herself  by  any 
contract  made  during  the  coverture ;  not,  as  in  the  case 
of  an  infant,  from  any  presumption  of  incapacity,  but 
because  she  has  no  separate  existence,  her  husband  and 
she  being,  in  contemplation  of  law,  but  one  person.  The 
great  case  on  this  subject  is  Marshall  v.  Rutton,(c) 
which  was  decided  by  all  the  Judges  in  England,  except 
Mr.  J.  Buller,  and  is  one  of  the  last,  perhapo  the  very 

(c)  8  T.  R.  ."  ij  ;  Lewis  v.  Lee,  3  B.  &  C.  (10  E.  C.  L.  R.)  291.     • 


308  smith's  law  of  contracts. 

last,  instance  of  the  practice  which  was  so  common  in 
the  early  ages  of  the  law,  according  to  which,  any  one 
of  the  superior  Courts  before  which  a  very  important 
point  arose,  requested  the  assistance  of  the  Judges  of 
the  other  two,  to  hear  it  discussed,  and  to  assist  in  de- 
ciding it.  In  this  case  it  was  held  that  she  cannot  bind 
herself  by  any  contract  made  during  her  coverture, 
although  she  was  separated  from  her  husband,  and  had 
a  separate  maintenance  :  nor  can  she  where  living  in  open 
adultery,  although  the  contract  was  for  goods  sold  to 
her,  and  the  vendor  knew  not  of  her  marriage,  (c?)  Her 
husband  being  a  foreigner  residing  abroad,  is  not  a  suf- 
ficient circumstance  to  make  her  liable  ;(e)  nor  will  his 
having  been  a  bankrupt  who  had  absconded  from  his 
j-^qnq-i  creditors,  and  was  residing  abroad  *when  the 
contract  was  made,  render  her  liable  to  be  sued 
uponit.(/) 

In  a  word,  except  so  far  as  the  law  is  qualified  by 
recent  legislation,  the  person  who  contracts  with  a  mar- 
ried woman,  as  far  as  any  right  in  a  court  of  law  is 
concerned,  relies  upon  her  bare  word ;  for  she  is  not 
recognised  there  as  a  person  capable  of  bindiag  herself 
by  any  contract  whatever,^  save  only  in  a  few  cases, 
which  I  will  now  specify. 

{d)  Meyer  v.  Haworth,  8  A.  &  E.  (35  E.  C.  L.  R.)  467. 

(e)  Stretton  v.  Busnach,  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  139. 

(/)  Williamson  v.  Dawes,  9  Bing.  (23  E.  C.  L.  R.)  292.  . 

^  While  it  is  correct  that  a  married  woman  cannot,  by  a  contract  made 
during  coverture,  bind  herself,  yet  the  husband  may  be  bound  by  con- 
tracts made  by  her,  in  cases  where  it  appears  that  she  acted  as  his 
agent,  or  under  an  authority  from  him,  express  or  implied. 

It  is  well  settled  that  a  married  woman  cannot  bind  herself  to  answer 
in  damages  by  reason  of  her  joining  with  her  husband  in  covenants  in 
a  deed  conveying  her  estate  ;  but  it  seems  not  to  be  exactly  determined 
whether  these  covenants  will  have  any  cifect  upon  her  by  way  of  estop- 
pel, such  an  effect  having  been  recognised  in  some  cases  :  Hill's  Lessee 


PARTIES   TO   CONTRACTS.  309 

The  first  of  these  is  where  her  husband  is  civilly 
dead  :  for  instance,  where  he  is  under  sentence  of  trans- 
portation. In  such  a  case,  to  prevent  her  from  contract- 
ing, would  be  to  deprive  her  too  of  all  civil  rights,  since 
the  husband,  being  civilly  dead,  is  no  longer  capable  of 
contracting  for  her.(^)  This  is  a  very  old  doctrine, 
having  been  first  established  in  the  2d  Hen.  IV.,  in  the 
Year  Book  of  which  year  we  find  that  Belknap,  the  Lord 
High  Treasurer,  was  banished  to  Gascony  till  he  should 
obtain  the  King's  favor,  and  his  wife,  Lady  Belknap, 
brought  an  action  in  the  Common  Pleas,  which  seems  to 
have  been  the  first  instance  of  such  a  proceeding  by  a 
married  woman ;  for  it  struck  the  lawyers  of  those  days 
with  so  much  surprise  that  they  commemorated  it  by  a 
Latin  distich,  which  Lord  Coke  has  thought  it  worth  his 
while  *to  preserve  in  the  1st  Institute.  It  is  r^^o-iQ-i 
in  the  old  monkish  style,  and  is  not  only  in 
hexameter  measure,  but  in  rhyme  also  :  the  words  are  : 

"  Ecce  modo  rnirum,  quod  foemina  fert  breve  Regis, 
Non  nominando  virum  conjunctum  robore  legis." 

Another  case  is  where  the  husband  is  a  foreigner  be- 
longing to  a  country  at  war  with  Great  Britain.  .  In  such 
case,  as  he  cannot  lawfully  contract  or  sue  in  England, 

(g)  Ex  parte  Franks,  7  Bing.  (20  E.  C.  L.  R.)  762;  Marsh  v.  Hutchin- 
son, 2  B.  &  P.  226. 

V.  West,  8  Ohio  226  ;  Marvie  v.  Sebastian,  4  Bibb.  436  :  Fowler  v. 
Shearer,  7  Mass  21  ;  Nash  v.  Spofford,  10  Mete.  192 ;  and  denied  in 
others:  Jackson  u.  Vanderheyden,  18  Johns.  167;  Carpenter  v.  Scher- 
merhorn,  2  Barb.  Ch.  314  ;  Wadleigh  v.  Glines,  6  N.  H.  18  ;  Den  v. 
Desmarest,  1  Zabr.  541. — r. 

The  deed  of  a  married  woman  is  void  :  Matthews  v.  Puffer,  19  N.  H. 
448  ;  Concord  v.  Bellis,  10  Cush.  276  ;  Chandler  v.  M'Kinney,  6  Mich. 
217  ;  Glyde  v.  Keister,  1  Grant  465  ;  32  Penn.  St.  85,  A  woman  after 
her  coverture  ceases  cannot  make  a  valid  legal  promise' to  pay  a  debt 
which  she  incurred  during  coverture  :  Goulding  v.  Davidson,  28  Barb. 
438. 


310  smith's  law  of  contracts. 

it  seems  to  be  admitted  that  his  wife  may  do  so  if  she 
were  unmarried,  (/z)^ 

By  the  custom  of  the  city  of  London,  a  married 
woman  is  allowed  to  be  a  trader  in  her  individual  ca- 
pacity, and  may  sue  alone  in  the  city  courts  on  contracts 

(h)  Barden  v.  Keverberg,  2  M.  &  W.  61  ;  see  De  Wahl  v.  Braune,  25 
L.  .J.  (Ex.)  343  ;  1  H.  &  N.  178. 

^  Derry  v.  Duchess  of  Mazarine,  1  Raym.  147.  This  exception,  how- 
ever, to  the  general  rule  which  denies  the  efficacy  of  the  contracts  of 
married  women,  is  not  confined  merely  to  the  case  of  the  wife  of  an 
alie7i  enemy,  nor,  indeed,  as  it  would  seem  by  the  late  authorities,  at 
least  in  this  country,  to  the  case  of  an  alien  at  all.  Some  distinctions 
were  at  one  time  taken,  which  have  not  latterly  been  recognised.  Thus 
it  has  been  held  that  where  the  husband  was  a  foreigner,  and  had  never 
been  in  the  country,  the  wife  could  sue  and  be  sued  on  her  contracts  : 
Walford  V.  Duchess  of  Pienne,  2  Esp.  554  ;  De  Gallion  v.  L'Aigle,  1  B. 
&  P.  357  ;  Gregory  v.  Paul,  15  Mass.  30  ;  Robinson  v.  Reynolds,  1  Aik. 
174  ;  but  not  where  the  husband  had  ever  resided  in  the  country  :  Kay 
V.  Duchess  of  Pienne,  3  Campb.  123  ;  or  was  a  natural  born  subject, 
though  he  might  have  deserted  her  and  resided  abroad  for  years  :  De 
Gaillon  v.  L'Aigle,  Boggett  v.  Frier,  11  East  301  ;  Franks  v.  Duchess  of 
Pienne,  2  Esp.  587.  The  distinction  thus  taken  between  an  alien  and  a 
subject  seems  to  have  proceeded  on  the  supposition  that  in  the  case  of 
the  latter,  there  might  be  an  animus  reverteiidi,  but  the  later  cases  have 
judiciously  neglected  such  a  distinction,  and  it  is  now  well  settled,  at 
least  in  this  country,  that  where  the  wife  has  been  left  by  her  hus- 
band— has  traded  as  a  feme  sole — and  has  obtained  credit  as  such,  she 
is  liable  for  her  debts,  and  on  the  other  hand  may  acquire  property  of 
her  own  :  Rliea  v.  Rheuner,  1  Pet.  105  ;  Bean  u.  Moyan,  4  M'Cord  148  ; 
Starret  v.  Wynn,  17  S.  &  R.  133  ;  Gregory  v.  Pierce,  4  Mete.  478  ; 
Arthur  v.  Broadnax,  3  Ala.  557  ;  James  v.  Stewart,  9  Ibid.  835  ;  and  it 
perhaps  would  not  be  inconsistent  with  reason  to  lay  down  as  a  rule, 
that  where  the  wife  has  obtained  credit  as  a  feme  sole,  and  her  husband 
is  absent  at  the  time  of  the  contract,  and  until  and  at  the  time  of  the 
bringing  of  the  suit,  a  recovery  may  be  had  against  her.  It  is  doubtful, 
however,  whether  the  English  cases  have  to  any  extent  abandoned  the 
distinctions  formerly  taken  by  them,  as  in  Bai-den  v.  Keverberg,  cited 
by  the  lecturer,  Mr.  Baron  Parke  said  that  a  party  seeking  to  make  a 
wife  liable,  "  must  make  out  that  the  husband  was  an  alien,  that  he  was 
resident  abroad,  and  never  in  this  country,  and  that  the  defendant 
represented  herself  as  a  feme  sole,  or  that  the  plaintiff  dealt  with  her 
believino;  her  to  be  so." — r. 


PARTIES    TO   CONTRACTS.  310 

made  by  her  in  the  course  of  such  trade  ;  but  it  would 
seem  that,  even  in  this  case,  before  the  late  Act,  if  she 
had  brought  an  action  in  the  Courts  at  Westminster,  it 
would  have  been  necessary  to  make  her  husband  a  party 
to  it.^  This  subject  is  learnedly  discussed  in  Beard  v. 
Webb.(0 

Even  if  a  married  woman  has  been  divorced  a  mensa 
d  ilmro.,  which,  before,  the  stat.  20  &  21  Vict.  c.  85,  s. 
7,  legalized  the  separation  of  the  parties,  but  left  the 
marriage  bond  unsevered,  the  same  rule  applied.  Now, 
however,  instead  of  a  divorce  a  mensa  et  thoro,  a  decree 
for  a  judicial  separation  is  pronounced  in  those  cases  in 
which  the  '-''limited  divorce  before  mentioned  was  p.^..^-.  -■  -, 
obtainable,  and  has  the  same  consequences  ; 
but  in  addition  to  these  the  wife  is,  while  the  separation 
continues,  to  be  considered  a  feme  sole,  and  may  con- 
tract as  such.  Upon  such  contracts  her  husband  is  not 
liable :  unless  upon  the  separation  alimony  shall  have 
been  decreed  to  her,  in  which  case,  if  it  be  not  duly 
paid,  he  remains  liable  for  necessaries  supplied  for  her 
use  (s.  l6).  Moreover,  a  wife  deserted  by  her  husband 
may  obtain  from  the  Court  for  Divorce  and  Matrimonial 
Causes,   in   the    Metropolitan   District   from   a    Police 

[i)  2  B.  &  P.  93. 

'  In  Pennsylvania,  South  Carolina,  and  perhaps  other  States,  the 
custom  of  London  as  to  feme  sole  traders  has  been  imitated  by  statutory 
enactments ;  see  Burk  v.  Hinkle,  2  S.  &  R.  189  ;  Jacobs  v.  Featherstone, 
H  W.  &  S.  346  ;  Newbiggen  v.  Pillans,  2  Penn.  St.  162  ;  Smith  v.  Tay- 
lor, 4  M'Cord  513  ;  Hobart  v.  Lemon,  3  Rich.  131  ;  Blythewood  v.  Ever- 
inghiim.  Ibid.  285. — r. 

Where  the  wife  has  been  a  long  time  absolutely  deserted  by  her  hus- 
band, and  left  wholly  to  her  own  means  of  support,  she  is  free  to  act  as 
a  feme  sole  :  Smith  v.  Silence,  4  Iowa  321.  Living  apart  from  the  hus- 
band does  not  affect  the  disabilities  of  a  feme  covert :  High  v.  Worley, 
33  Ala.  196  :  and  see  Prescott  v.  Fisher,  22  111.  390  ;  Ayer  v.  Wai-ren, 
47  Me.  217. 


oil  smith's  law  of  contracts. 

., Magistrate,  or  in  the  country  from  two  Justices,  an 
order  to  protect  any  property  which,  after  her  desertion, 
she  may  acquire  by  her  own  industry,  or  may  become 
possessed  of;  and  she  is  during  the  continuance  of  the 
order,  and  during  her  desertion,  in  the  like  position  in 
I'egnrd  to  property  and  contracts,  suing  and  being  sued, 
as  if  she  had  obtained  a  decree  of  judicial  separation 
(S.21). 

Now,  so  far  with  regard  to  a  married  woman's  right 
to  bind  herself  by  contracts.  But,  with  regard  to  her 
power  of  taking  advantage  of  contracts  made  by  other 
persons  with  her,  the  rule  is  somewhat  different ;  for  it 
has  been  decided  that,  if  a  contract  be  made  with  the 
wife,  on  good  consideration,  during  the  marriage,  the 
husband  may,  if  he  please,  take  advantage  of  it,  and 
recover  in  an  action  on  it,  in  which  action  he  may  join 
his  wife  as  a  co-plaintiff.  And  if  he  die,  without  taking 
p.:.o-|9-]  any '"such  step,  the  right  to  sue  upon  it  will 
survive  to  the  wife.(^)  One  of  the  earliest 
authorities  on  this  subject  is  Brashford  v.  Buckingham,  (/) 
where,  the  wife  had  undertaken  to  cure  a  wound  for  the 
sum  of  ten  pounds,  which  the  patient  was  ungrateful 
enough  not  to  pay;  and  after  she  and  her  husband  had 
recovered  judgment  in  an  action  of  debt,  a  writ  of  error 
w^as  brought  in  the  Exchequer  Chamber  on  the  ground 
that  a  married  woman  could  not  sue.  But  the  Court 
said,  that,  being  grounded  on  a  promise  made  to  the 
wife,  upon  a  matter  arising  upon  her  skill,  and  on  a 
performance  to  be  made  to  the.  wife,  she  is  the  cause  of 
the  action,  and  so  the  action  brought  in  both  their 
names  is  well  enough,  and  such  action  shall  survive  to 
the  wife.     Wherefore  the  judgment  was  affirmed.     On 

(A-)  So  after  divorce,  Wells  v.  Malbon,  31  L.  J.  (Ch.)  344. 
[l]  Cro.  Jac.  77,  confirmed  in  error,  Ibid.  205. 


PARTIES    TO    CONTRACTS.  312 

the  same  principle,  if  a  bond  be  made  payable  to  her, 
she  and  her  husband  may  sne  upon  it.(?n)A  So  if  a 
promissory  note  be  made  payable  to  her.  "Is  not  the 
wife,"  said  Lord  Ellenborough,  "the  meritorious  cause 
of  the  action ;  she  is  the  donee  of  the  note,  and  it  is 
acquired  through  her,  and  the  note  is  a  thing  which  of 
itself  imports  a  consideration."  (?z)  There  is  a  very 
curious  case  of  Richards  v.  *]iichards,(6>)  in  pijo-io-i 
which  a  married  woman  took  a  note  from  her 
own  husband  and  two  other  persons.  And  it  was  held, 
that,  though  no  one  could  have  sued  on  it  in  his  life- 
time, yet,  that,  after  his  death,  she  might  sue  the  two 
surviving  makers ;  and  that  decision  is  approved  of  in 
Gaters  v.  Madeley.(^)     In  that  case  a  promissory  note 

{m)  Day  v.  Padrone,  2  M.  &  Sel.  396,  n.  (6).  See  Johnson  v.  Lucas. 
22  L.  J.  (Q.  B.)  174;  1  E.  &  B.  (72  E.  C.  L.  R.)  659  ;  Dalton  v.  Midland 
Counties  By.,  22  L.  J.  (C.  P.)  177 ;  13  C.  B.  (76  E.  C.  L.  R.)  474. 

[n]  Philliskirk  v.  Pluckwell,  2  M.  &  Sel.  395. 

(o)  2  B.  &  Ad.  (22  E.  C.  L.  R.)  447. 

[p]  6M.  &  W.  423.  See  Bendix  v.  Wakeman,  12  M.  &  W.  97  :  Guy- 
ard  V.  Sutton,  3  C.  B.  (54  E.  C.  L.  R.)  153. 

(a)  Upon  a  deed  i7iter  partes,  made  during  coverture,  the  effect  of  the 
authorities  seems  to  be  that,  prima  facie,  the  right  of  action  on  the 
covenant  belongs  to  the  veife,  and  would  survive  to  her  on  the  death  of 
the  husband,  without  his  having  reduced  it  into  possession,  by  dissent- 
ing from  her  right  in  some  operative  way,  as  by  taking  a  new  security 
so  as  to  vest  the  interest  in  himself.  Therefore,  the  coverture  of  the 
plaintiff  in  such  a  case  cannot  be  pleaded  in  bar,  and  in  an  action  brought 
by  the  plaintiff,  the  non-joinder  of  the  husband  can  be  pleaded  only  in 
abatement:  Bendix  v.  Wakeman,  12  M.  &  W.  97.' 


'  Coverture  may  be  pleaded  in  abatement  or  in  bar,  according  to 
circumstances  ;  where  the  defence  goes  to  the  root  of  the  demand,  as, 
for  instance,  in  an  action  on  a  bond  given  by  the  wife,  it  may  be  pleaded 
in  bar  :  Steer  v.  Steer,  14  8.  &  R.  379  ;  but  where  the  defence  is  merely 
the  disability  of  the  wife  to  sue  in  her  own  name,  it  must  be  pleaded  in 
abatement :  Perry  v.  Boileau,  10  S.  &  R.  208  ;  Lyman  v.  Albee,  7  A'erm. 
508. 


313  smith's  law  of  contracts. 

was  given  to  a  married  woman  during  the  coverture. 
She  survived  her  husband,  and  having  afterwards  her- 
self died  before  the  note  was  paid,  it  was  held  that  her 
executor  was  entitled  to  maintain  an  action  upon  it. 
The  rule  is  very  clearly  laid  down  in  the  judgment  of 
Baron  Parke.  "This,"  said  his  Lordship,  "is  an  action 
on  a  promissory  note — an  instrument  on  which  no  one 
can  sue  unless  he  was  originally  party  to  it,  or  has  be- 
come entitled  to  it  under  one  who  was.  A  promissory 
note  is  not  a  personal  chattel  in  possession,  but  is  a 
chose  in  action  of  a  peculiar  nature.  It  has,  indeed, 
been  made  by  statute  assignable  and  transferable  accord- 
ing to  the  custom  of  merchants,  like  a  bill  of  exchange. 
Still  it  is  a  chose  in  action,  and  nothing  more.  When 
a  chose  in  action,  such  as  a  bond  or  note,  is  given  to  a 
feme  covert^  the  husband  may  elect  to  let  his  wife  have 
the  benefit  of  it;^  or,  if  he  thinks   proper,  he  may  take 

'  There  is  a  familiar  class  of  cases  in  equity  in  which  the  husband  has 
suifered  the  wife,  after  marriage,  to  acquire  a  separate  property  of  her 
own,  as  where,  in  Slanning  v.  Styles,  3  P.  Wms.  338,  a  husband  per- 
mitted his  wife  to  make  a  profit  of  all  the  butter,  eggs,  and  poultry, 
beyond  what  was  used  in  the  family,  and  borrowed  of  her  £100,  the 
fruit  of  these  savings,  she  was  held  entitled  to  come  in  as  a  creditor 
upon  his  estate,  after  his  death  ;  so,  in  Fettiplatre  v.  Gorges,  1  Ves. 
Jr.  46  ;  Walter  v.  Hodges,  2  Swans.  103;  Rogers  v.  Fales,  5  Penn.  St. 
157. 

In  a  very  recent  case  in  the  Exchequer,  Messenger  v.  Clarke,  5  Exch. 
388,  a  wife  who  lived  apart  from  her  husband,  purchased  stock  in  her 
maiden  name,  out  of  the  allowance  made  to  her  by  him,  and  having  sold 
out  this  stock,  and  given  the  proceeds  to  her  brother  as  a  gift,  the  hus- 
band was  held  entitled  to  recover  it  from  him  after  her  death,  the  Court 
holding,  that  although  her  allowance  was  not  subject  to  recall  by  her 
husband,  yet  that  the  stock  when  purchased,  became  his,  and  that  she 
had  no  authority  to  dispose  of  it  as  a  gift.  It  was  said,  however,  that  if 
it  had  been  parted  with  for  a  valuable  consideration,  or  the  money  been 
applied  in  payment  of  debt,  it  would  have  been  otherwise.  It  is  well 
settled  with  respect  to  the  husband's  right  of  disposition  over  his  wife's 
chosea  in  action,  he  cannot  give  them  away  :  Burnett  v.  Kinnaston,  2 


PARTIES    TO    CONTRACTS.  313 

it  himself:  and  if  in  this  case  the  husband  had  in  his 
lifetime  brought  *an  action  upon  this  note  in  his  po-i  ^-i 
own  name,  that  would  have  amounted  to  an 
election  to  take  it  himself,  and  to  an  expression  of  dis- 
sent on  his  part  to  his  wife's  having  any  interest  in  it. 
On  the  other  hand,  he  may,  if  he  pleases,  leave  it  as  it 
is ;  and  in  that  case,  the  remedy  on  it  survives  to  the 
wife:^  or  he  may  adopt  another  course,  and  join  her 
name  with  his  own;  and  in  that  case,  if  he  should  die 
after  judgment,  the  wife  would  be  entitled  to  the  benefit 
of  the  note,  as  the  judgment  would  survive  to  her." 

Here,  you  see,  all  the  possible  cases  are  put,  and  the 
consequence  of  each  pointed  out,  which  makes  this 
judgment  a  very  useful  one  for  the  purpose  of  practical 
reference. 

Though  it  is  settled  law  that  a  promissory  note  given 
to  the  wife  during  coverture  is  a  chose  in  action,  and 
not  a  personal  chattel  vested  in  the  husband,  and  that 
upon  his  death  the  right  to  -sue  on  it  survives  to  the 
widow  unless  the  husband  has  reduced  it  into  posses- 
sion, it  is  still  a  point  of  nicety  and  difficulty  to  deter- 
mine w^hat  is  a  reducing  into  possession  by  the  husband, 

Vern.  401  :  Jewson  v.  Moulson,  2  Atk.  417  ;  Mitford  v.  Mitford,  9  Ves. 
87:  Johnson  I'.  Johnson,  1  Jac.  &  Walk.  456;  Hartman  v.  Dowdel,  1 
Rawle  281  ;  Parsons  v.  Parsons,  9  N.  H.  322;  whatever  may  be  his 
power  of  barring  her  right  of  survivorship  by  an  assignment  or  mort- 
gage for  a  valuable  consideration,  or  an  application  of  them  in  discharge 
of  a  debt.    See  Ryland  v.  Smith,  1  Myl.  &  Cr.  53.— r. 

^  It  has  however  been  held  in  Massachusetts,  that  a  note  given  or  in- 
dorsed to  a  wife  during  coverture,  is  to  be  considered  as  actually  reduced 
into  possession,  and  at  the  husband's  death  would  therefore  go  to  his 
representative,  to  the  exclusion  of  the  wife's  survivorship  :  Shuttleworth 
V.  Noyes,  8  Mass.  229 ;  Com.  v.  Marley,  12  Pick.  173.  He  may,  indeed, 
in  such  cases  sue 'alone,  and  thus  exercise  his  powers  of  reducing  it  into 
possession,  but  until  he  does  so,  or  receives  the  money  without  suit,  it 
would  seem  that  he  cannot  be  considered  as  having  at  all  interfered  with 
it,  so  as  to  deprive  her  of  her  survivorship. — r. 


314  .     smith's  law  of  contracts. 

such  as  to  deprive  the  wife  of  her  subsequent  remedy. 
In  the  case  of  Hart  v.  Stephens,  (§')  where  the  adminis- 
trator of  a  deceased  widow  sued  on  a  note  given  her 
dum  sola ;  the  Court  held  that  the  husband  of  the  de- 
ceased, by  receiving  interest  on  the  note  during  the 
r*o-j  r-i  life  of  the  wife,  had  not  reduced  it  into  *pos- 
session ;  and  it  seems  to  have  been  assumed 
that  receiving  moneys  on  it,  or  bringing  an  action  for  it, 
are  alone  sufficient  reductions  into  possessTon — a  doc- 
trine apparently  sanctioned  by  Lord  Kenyon,  C.  J.,  in 
Milner  v.  Milnes,(r)  and  by  Lord  Hardwicke  in  Gar- 
forth  V.  Bradley,  (5)  who  puts  it  on  the  ground  of  dissent 
to  the  interest  remaining  in  the  wife  thereby  evidenced 
on  the  part  of  the  husband.  In  the  still  later  case  of 
Scarpellini  v.  Atcheson,(/)  a  case  which  presents  some 
noticeable  features,  the  plaintiff  was  a  widow,  and  the 
payee  of  a  promissory  note  made  to  her  during  coverture 
by  the  defendant.  The  husband  caused  the  wife,  as  the 
plea  stated,  "in  his  marital  right,"  to  endorse  to  F.,  who 
after  his  death  delivered  it  to  the  wife  who  then  brought 
this  action  upon  it.  The  Court  embodied  in  the  judg- 
ment the  doctrine  we  have  just  stated,  and  held  that  the 
facts  as  stated  did  not  amount  to  a  reduction  into  pos- 
session by  the  husband.^  Still  more  recently,  in  a  case 
where  the  defendant  received  money  from  a  third  person 
to  be  appropriated  to  the  use  of  a  married  woman,  and 

iq)  6  Q,.  B.  (51  E.  C.  L.  R.)  937. 
(r)  3  T.  R.  627. 

is)  2  Yes.  675;  Michelmore  v.  Mudge,  29  L.  J.  (Ch.)  609;  Hamilton 
V.  Mills,  29  Beav.  193. 

[t)  7  Q.  B.  (53  E.  C.  L.  R.)  864. 

^  On  the  subject  of  reduction  to  possession  by  the  husband  of  the  wife's 
choses  in  action,  see  Poor  v.  Hazleton,  15  N.  H.  564  ;  Stoner  v.  The 
Com.,  16  Penn.  St.  387  ;  Barron  v.  Barron,  24  Verm.  375;  Abbington 
V.  Travis,  15  Mo.  240. 


PARTIES   TO   CONTRACTS.  315 

he  wrote  telling  her  he  held  the  money  at  her  disposal, 
and  the  husband  survived  the  wife,  and  died,  never 
having  at  any  time  interfered  in  any  way  as  to  the 
money ;  it  was  held,  that  the  wife's  representative  and 
not  the  husband's,  was  the  ^proper  party  to  sue 
for  the  money,  as  the  facts  showed  a  chose  in  ^  J 
action  conferred  on  the  wife  with  which  the  husband 
had  not  interfered  during  coverture.  (?^) 
.  As  regards  the  effect  of  the  Married  Women's  Pro- 
perty Act  1870  (33  &  34  Vict.  c.  93),  on  contracts 
entered  into  by  a  married  woman  subsequently  to  her 
marriage ;  by  sect.  1  of  that  Act,  the  wages  and  earn- 
ings of  any  married  woman  acquired  or  gained  by  her 
after  the  passing  of  the  Act  in  any  employment,  occu- 
pation, or  trade,  in  which  she  is  engaged  or  which  she 
carries  on  separately  from  her  husband,  and  also  any 
money  or  property  so  acquired  by  her  through  the  ex- 
ercise of  any  literary,  artistic,  or  scientific  skill,  and  all 
investments  of  such  wages,-  earnings,  money,  or  pro- 
perty, shall  be  deemed  and  taken  to  be  property  held 
and  settled  to  her  separate  use,  independent  of  any 
husband  to  whom  she  may  be  married,  and  her  receipts 
alone  shall  be  a  good  discharge  for  such  wages,  earnings, 
money,  and  property.  Under  sect.  10  of  the  same  Act, 
'*  a  married  woman  may  effect  a  policy  of  insurance 
upon  her  own  life  or  the  life  of  her  husband  for  her 
separate  use,  and  the  same  and  all  benefit  thereof,  if 
expressed  on  the  face  of  it  to  be  so  effected,  shall 
"^'enure  accordingly,  and  the  contract  in  such 
policy  shall  be  as  valid  as  if  made  with  an  un-    '-        J 

(h)  Fleet  V.  Perrins,  L.  II.  3  Q.  B.  536;  37  L.  J.  (Q.  B.)  233;  affirmed 
in  Ex.  Ch.,  L.  R.  4  Q.  B.  500  ;  38  L.  J.  (Q.  B.)  257.  See  also  Jones  v. 
Cuthbertson,  L.  R.  7  Q.  B.  218;  41  L.  J.  (Q.  B.)  145;  affirmed  in  Ex. 
(Jh.,  L.  R.  8  Q.  B.  504 ;  42  L.  .J.  (Q.  B.)  221. 


317 


SMITHS    LAAV    OF    CONTRACTS. 


married  woman."  And  sect.  11  enables  a  married 
woman  to  maintain  an  action  in  lier  own  name  for  the 
recovery  of  any  wages,  earnings,  money,  and  property 
by  the  Act  declared  to  be  her  separate  property ;  and 
gives  her  in  her  own  name  the  same  remedies  against 
all  persons  whomsoever  for  the  protection  and  security 
of  such  wages,  earnings,  money,  and  property,  and  of 
any  chattels  or  other  property  purchased  or  obtained  by 
means  thereof  for  her  own  use,  as  if  such  wages,  earn- 
ings, money,  chattels,  and  property  belonged  to  her  as 
an  unmarried  woman. 

Having  thus  disposed  of  the  considerations  arising  on 
contracts  made  with  or  by  infants  and  married  women, 
I  will  postpone  the  conclusion  of  this  branch  of  the  sub- 
ject till  the  next  Lecture. 


PARTIES    TO   CONTRACTS.  318 


^LECTURE  IX.  [*318] 

PARTIES      TO      CONTRACTS, INSANE      PERSONS. INTOXICATED 

PERSONS. ALIENS. CORPORATIONS. PUBLIC       COMPANIES. 

THE    MODE   IN   WHICH   COMPETENT   PERSONS   CONTRACT. 

AGENTS. PARTNERS. 

Pursuing  the  inquiry  upon  which  I  entered  in  the 
last  Lecture  with  regard  to  the  competency  of  the 
parties  to  Contracts,  and  having  disposed  of  the  cases 
of  Infancy  and  Coverture,  the  next  in  order  is  that  of 
persons  of  non-sane  mind,  whose  disability  arises,  not, 
as  in  the  two  former  cases,  from  a  positive  rule  of  law, 
but  from  the  very  nature  of  their  disorder  itself. 

In  the  earliest  ages  of  our  law,  the  rule  which  com- 
mon sense  dictates  on  this  subject  appears  to  have  pre- 
vailed, namely,  that  a  person-  deprived  of  the  use  of  that 
reason  which  is  the  instrument,  if  I  may  so  say,  with 
which  men  contract,  shall  not  be  bound,  to  his  own 
injury,  by  contracts  made  while  in  such  a  situation.^ 
Thus,  in  Fitzherbert's  Natura  Brevium  202,  it  is  laid 
down,  that  a  person  who  had  enfeoffed  another  of  his 
land  while  non  compos  might,  on  recovering  his  intellect, 
avoid  the  feoffment.  But  soon  afterwards  a  doctrine 
w\as  established  *of  the  most  absurd  description 
which  it  was  possible  for  the  ingenuity,  even  of  ^  '^  J 
an  ancient  lawyer,  to  have  devised.  It  was  admitted 
that  the  acts  and  contracts  of  a  lunatic  could  not  be 
looked  upon  as  valid  as  far  as  they  affected  other  per- 
sons, but  it  was  said  that  they  should  bind,  the  lunatic 

^  Mitchell   V.  Kingman,  5  Pick.  431  ;  Rice  v.   Peet,  15  Johns.  503  : 
Grant  v.  Thompson,  4  Conn.  203  ;  1  Story's  Eq.  Jur.  I  225.— r. 


oil)  smith's  law  of  contracts. 

himself,  after  he  had  recovered  the  use  of  his  reason; 
•'  for,"  said  the  old  lawyers,  "  a  man  cannot  remember 
what  he  did  when  he  was  out  of  his  mind,  and  conse- 
quently cannot  recollect  whether  he  did  this  or  that  par- 
ticular act,  or  entered  into  this  or  that  particular  con- 
tract." And  they  actually  carried  this  so  far,  that  it 
became  a  maxim  that  a  man  should  not  he  heard  to  stultify 
himself,  and  it  is  laid  down  as  such  in  the  405th  and 
406th  sections  of  Littleton,  and  in  Stroud  v.  Marshall,  («) 
where  the  opinion  of  Fitzherbert  to  the  contrary,  in  his 
Natura  Brevium,  was  overruled. 

However,  in  more  modern  times,  the  common  sense  of 
the  Courts  began  to  be  shocked  by  this  doctrine,  and 
Sir  William  Blackstone,  in  his  Commentaries,  {b)  argues 
with  great  force  of  reasoning  against  it.  In  the  later 
cases  of  Yates  v.  Boen(c)  and  Faulder  v.  Silk,  (J)  it 
seems  to  have  been  discarded;  and  there  is  no  doubt 
now  ihat  the  lunacy  of  one  of  the  contracting  parties 
may  be  shown  by  himself  if  sued  upon  a  contract  en- 
r*^9m  tered  into  while  *he  was  in  that  condition. 
However,  it  would  not  be  for  the  lunatic's  own 
benefit  to  prohibit  him  ahsoluteJy  from  binding  himself 
by  any  contract  whatever.  Such  a  prohibition  might 
prevent  him  from  obtaining  credit  for  the  ordinary 
necessaries  of  life;  and  there  are  modern  cases  in  which 
contracts  evidently  of  a  fair  and  reasonable  description 
entered  into  with  a  lunatic  have  been  held  binding  on 
him,  and  have  been  enforced.  In  the  case  of  Baxter  v. 
Earl  of  Portsmouth,  (e)  an  action  was  brought  against 
the  Earl  of  Portsmouth  for  the  hire  of  several  carriages. 
It  was  proved  that  the  carriages  were  suitable  to  his 

(a)  Cro.  Eliz.  398.  .      (^)  2  Bla.  Com.  291. 

(c)  Stra.  1104.  (rf)  3  Camp.  126. 

(e)  5  B.  &  C.  (11  E.  C.  L.  R.)  170. 


PARTIES    TO    CONTRACTS.  320 

rank  and  fortune,  and  that  the  price  charged  for  them 
was  a  fair  and  reasonable  one;  but  on  the  other  hand,  it 
appeared  that  an  inquisition  had  issued  out  of  Chancery 
under  which  the  Earl  was  found  to  have  been  insane  for 
a  period  long  anterior  to  the  time  at  which  the  carriages 
in  question  were  supplied  to  him.  The  L.  C.  J.  Abbott, 
before  whom  the  case  was  tried,  directed  the  jury,  that, 
as  the  articles  hired  were  suitable  to  the  station  and  for- 
tune of  the  defendant,  and  as  the  plaintiffs,  at  the  time 
of  making  the  contract,  had  no  reason  to  suppose  him 
of  unsound  mind,  and  could  not  be  charged  with  prac- 
ticing any  imposition  upon  him,  they  were  entitled  to 
recover;  and  the  jury  accordingly  found  a  verdict  for  the 
plaintiffs.  Mr.  (afterwards  Lord)  ^Brougham  ^^ 
moved  in  the  next  term  to  set  it  aside,  but  the  L  ^""  -J 
Court  supported  the  direction  of  the  Lord  Chief  Justice. 
In  a  subsequent  case  of  Brown  v.  Jodrell,(/)  the 
lunatic  was  the  chairman  of  a  society  called  the  Athen- 
aion,  and  he  had  concurred  in  ordering  work  and  goods 
to  be  supplied  to  them;  for  these  Lord  Tenterden  held 
that  he  might  be  sued  by  the  person  who  had  supplied 
them.  From  these  decisions  it  is  plain  that  la  lunatic's 
contracts  are  binding  in  many  instances ;  and  some 
treatises  suggest  that  he  stands  on  the  same  footing 
with  an  infant,  and  is  liable  only  for  necessaries.  But 
this  is,  I  think,  not  quite  so ;  nor  would  it  be  reason- 
able that  it  should  be  so ;  for,  where  a  lunatic  is  per- 
mitted to  go  about  and  appear  to  the  world  as  a  person 
of  sane  mind,  it  would  be  very  hard  indeed  to  prevent 
persons  who  had  supplied  him  with  goods  under  that 
impression  at  a  fair  price,  from  recovering  because  the 
articles  were  not  necessaries.     And,  in  the  case  I  have 

(/)  M.  &  M.  105  ;  3  Car.  &  P.   (14  E.  C.  L.  R.)  30,  s.  c.     See  also 
Dane  v.  Kirkwall,  8  Car.  &  P.  (34  E.  C.  L.  R.)  679. 
23 


321  smith's  law  of  contracts. 

just  cited,  of  Brown  v,  Jodrell,  an  infant  could  not,  I 
think,  have  been  held  liable  for  goods  supplied  to  the 
Athenaion.  A  later  case  in  which  the  subject  has  been 
canvassed,  is  that  of  Tarbuck  v.  Bispham,(^)  in  which 
one  of  the  questions  w^as,  whether  a  lunatic  labored,  under 
the  same  incapacity  to  bind  himself  by  stating  an  ac- 
pjiooo-j  count  as  I  have  *already  shown  you  that  an  in- 
fant does.  The  case  went  off  upon  a  different 
point,  but  the  Court  said,  that,  had  it  become  material, 
they  would  have  granted  a  rule  for  the  purpose  of  con- 
sidering it. 

It  seems  clear  that  a  lunatic  is  liable  upon  an  executed 
contract  for  articles  suitable  to  his  degree,  furnished  by 
a  person  who  did  not  know  of  his  lunacy,  and  practised 
no  imposition  upon  him.^     Where  A.  advanced  money 

[g)  2  M.  &  W.  2. 

^  In  the  recent  case  of  Moulton  v.  Camroux,  2  Exch.  501,  which  was 
an  action  to  recover  money  paid  by  a  lunatic  for  the  pui'chase  of  an  an- 
nuity, the  jury  found  that  the  transaction  was  a  fair  and  business  one. 
and  made  by  the  defendants  in  good  faith,  and  in  ignorance  of  the 
plaintiff's  unsoundness,  and  the  Court  in  giving  judgment  for  the  de- 
fendant, thus  reviewed  the  cases  : 

"'  The  plaintiff's  counsel  distinguished  the  cases  of  Brown  v.  Jodrell,  1 
M.  &  M.  (22  E.  C.  L.  R.)  105,  and  Baxter  v.  The  Earl  of  Portsmouth,  2  C. 
&  P.  (12  E.  C.  L,  R.)  178,  ^  &C.  170,  and  other  cases  of  that  sort,  on  the 
ground  that  necessaries  furnished  to  a  lunatic  were  an  exception  to  the 
general  doctrine  that  he  could  not-make  a  contract ;  and  he  cited  the  judg- 
ment of  the  Lord  Chief  Baron,  in  the  case  of  Gore  v.  Gibson,  as  showing  a 
distinction  between  express  and  implied  contracts,  and  deciding  that  all  ex- 
press contracts  were  void,  if  the  parties  to  them  were  incapable  of  making 
a  contract.  On  the  other  hand,  it  was  argued  by  the  defendant's  counsel, 
that  there  was  a  distinction  between  contracts  executed  and  executory ;  that 
executory  contracts  could  not  be  enforced,  but  that  executed  contracts 
could  not  be  disturbed,  if  made  in  good  faith  and  without  notice  of  the 
incapacity ;  and  he  called  our  attention  to  this,  that  all  the  cases  cited  were 
cases  where  damages  for  the  breach  of  an  executory  contract  were  in 
question,  but  that  no  case  had  yet  decided,  that  an  executed  contract,  if 
perfectly  fair  and  bona  fide,  could  be  questioned  on  the  ground  of  the 
unsoundness  of  mind  of  both  parties  ;  and  he  cited  the  case  of  Howard 


y^ 

PARTIES    TO   CONTRACTS.  322 

on  mortgage  to  B.,  a  lunatic,  but  did  not  know  B.'s 
state,  and  took  no  advantage  of  him,  he  was  held  en- 

V.  The  Earl  of  Digby,  2  CI.  &  Fin.  634 ;  "Williams  v.  Wentworth,  5  Beav. 
325  ;  and  Selby  v.  Jackson,  6  Beav.  192,  to  show  that  the  House  of  Lords 
in  the  first  case,  and  Lord  Langdale  in  the  two  last,  had  recognised  the 
liability  of  lunatics  or  their  estate,  in  respect  of  contracts  bond  fide 
acted  upon.  The  case  of  Neil  v.  Morley,  9  Ves.  478,  before  Sir  Wil- 
liam Grant,  to  the  same  effect,  had  been  cited  before,  by  the  counsel  for 
the  plaintiff. 

■  "As  far  as  we  are  aware,  this  is  the  first  case  in  which  it  has  been 
broadly  contended  that  the  executed  contracts  of  a  lunatic  must  be  dealt 
with'  as  absolutely  void,  however  entered  into,  and  although  perfectly 
fair,  bond  fide^  reasonable,  and  without  notice,  on  the  part  of  those  who 
have  dealt  with  the  lunatic. 

"  On  looking  into  the  cases  at  law,  we  find  that,  in  Brown  v.  Jodrell, 
Lord  Tenterden  says,  '  I  think  the  defence  (of  unsoundness  of  mind) 
will  not  avail,  unless  it  be  shown  that  the  plaintiff  imposed  on  the  de- 
fendant.' In  Baxter  v.  The  Earl  of  Portsmouth,  5  B.  &  C.  (11  E.  C.  L. 
R.)  170  (the  Nisi  Prius  authority  of  which  is  in  2  C.  &  P.  (12  E.  C.  L. 
178),  Abbott,  C.  J.,  with  the  concurrence  of  the  rest  of  the  Court,  laid 
down  the  same  doctrine.  In  Dane  v.  Viscountess  Kirkwall,  Mr.  Justice 
Patteson,  in  directing  the  jury,  said,  'It  is  not  sufiicient  that  Lady 
Kirkwall  was  of  unsound  mind,  but  you  mast  be  satisfied  that  the 
plaintiff  knew  it  and  took  advantage  of  it.' 

"  We  are  not  disposed  to  lay  down  so  general  a  proposition,  as  that  all 
executed  contracts  bond  fide  entered  in-to  must  be  taken  as  valid,  though 
one  of  the  parties  be  of  unsound  mind  ;  we  think,  however,  that  we  may 
safely  conclude,  that  when  a  person,  apparently  of  sound  mind,  and  not 
known  to  be  otherwise,  enters  into  a  contract  for  the  purchase  of  pro- 
perty, which  is  fair  and  bond  fide,  and  which  is  executed  and  com- 
pleted, and  the  property,  the  subject-matter  of  the  contract,  has  been 
paid  for  and  fully  enjoyed,  and  cannot  be  restored  so  as  to  put  the  par- 
ties in  statu  quo,  such  contract  cannot  afterwards  be  set  aside,  either  by 
the  alleged  lunatic,  or  those  who  represent  him.  And  this  is  the  pre- 
sent case,  for  it  is  the  purchase  of  an  annuity  which  has  ceased."  This 
judgment  was  subsequqntly  afiirmed  on  error  in  the  Exchequer  Cham- 
ber, 4  Exch.  18. 

The  same  principle  was  adopted  in  Pennsylvania,  in  Beals  v.  Lee,  lU 
Penn.  St.  60  (following  La  Rue  v.  Gilkyson,  4  Ibid.  375),  where  it  was 
held  that  the  administrator  of  a  lunatic  could  not,  in  the  absence  of 
fraud  or  knowledge  of  his  state  of  mind,  or  such  conduct  on  the  part 
of  the  lunatic  from  wliich  his  disease  might  fairly  be  inferred  or  sus- 
pected, recover  back  the  price  of  merchandise  sold  to  him,  even  though 


322  smith's  law  of  contracts. 

titled  to  a  decree  of  foreclosure.  (/^)     It  seems  equally 
clear  that  he  is  not  liable  when  the  other  contracting 

[h)  Campbell  v.  Hooper,  24  L.  J.  (Ch.)  644. 

it  was  unsuited  to  the  object  for  which  it  was  purchased,  and  above  the 
market  price. 

In  Massachusetts,  however,  in  the  case  of  Seaver  v.  Phelps,  11  Pick. 
304,  which  was  trover  for  a  promissory  note,  pledged  by  the  plaintiff 
while  insane,  to  the  defendant,  the  Court  were,  on  behalf  of  the  latter, 
requested  to  charge,  that  although  the  plaintiff  might  have  been  insane 
at  the  time  of  making  the  contract,  yet  that  if  the  defendant  were  not 
apprised  of  that  fact,  or  had  no  reason,  from  the  conduct  of  the  plaintiff 
or  from  any  other  source  to  suspect  it,  and  did  not  overreach  or  impose 
upon  him,  or  practise  any  fraud  or  unfairness,  the  contract  could  not  be 
annulled  ;  but  the  Court  refused  so  to  charge,  and  the  jury  having  found 
for  the  plaintiff,  the  Supreme  Court  affirmed  the  judgment  on  the  autho- 
rity of  Thompson  v.  Leach,  3  Mod.  310,  and  regarded  the  law  on  the 
subject  of  contracts,  made  by  lunatics,  as  being  on  the  same  footing  as 
those  of  an  infant;  and  it  was  said  that  the  case  of  Baxter  v.  The  Earl 
of  Portsmouth,  supra,  was,  notwithstanding  the  dicta  in  the  case,  decided 
mainly  on  the  ground  of  the  carriages  being  suitable  to  the  defendant's 
condition  in  life,  and  the  opinion  of  Lord  Tenterden,  in  Bi-own  v.  Jod- 
rell,  supra,  as  to  the  materiality  of  the  absence  of  imposition,  was  dis- 
approved. It  may  be  remarked,  however,  that  Thompson  v.  Leach  is 
not  an  authority  for  such  a  point,  further  than  that,  "  the  grants  of 
infants,  and  of  persons  non  compos  mentis,  are  parallel  both  in  law  and 
reason,"  and  this  is  a  well-settled  rule  of  the  law  of  real  estate,  the 
grants  of  both  being  voidable :  F.  N.  B.  202  n.  ;  Mitchell  v.  Kingman, 
5  Pick.  431  ;  Allis  v.  Billings,  6  Mete.  419  (see  the  termination  of  the 
case  in  2  Cush.  19,  by  which  it  appears  that  the  party  was,  at  times  at 
least,  only  feigning  insanity) :  Fitzgerald  v.  Reed,  9  Sm.  &  Marsh.  102. 
The  recent  case  of  Hallett  v.  Oakes,  1  Cush.  296,  was  an  action  to  re- 
cover the  value  of  professional  services  in  a  habeas  corpus  to  procure 
the  liberation  of  one  who  was  insane  and  remanded  as  such,  and  a  re- 
covery was  allowed  on  the  ground  of  such  services  being  classed  with 
necessaries,  and  having  been  rendered  by  the  plaintiff  in  good  faith, 
and  on  due  inquiry  into  the  grounds  and  causes  of  the  confinement. — R. 

Where  a  person  apparently  of  sound  mind  andnot  known  to  be  other- 
wise, fairly  and  bond  fide  purchases  property,  and  receives  and  uses  the 
same,  payment  cannot  be  refused  either  by  the  alleged  lunatic  or  nis 
representatives :  Wilder  v.  Weakley,  34  Md.  181  ;  Matthiessen  R.  Co.  v. 
M'Mahon,  38  N.  J.  (Law)  537.  As  to  the  liability  of  insane  persons  for 
necessaries,  see  Ex  parte  Northington,  1  Ala.  (S.  C.)  400;  Sawyer  v. 
Lafkin,  56  Me.  308. 

See  on  the  subject  of  insanity  generally,  Dennett  v.  Dennett,  44  N. 


PARTIES    TO   CONTRACTS.  322 

party  has  taken  advantage  of  his  lunacy :  indeed  that 
was  the  decision  in  Levy  v.  Baker,  reported  in  a  note  to 
Brown  v.  Jodrell.(z) 

Since  the  above  cases  were  decided,  the  law  upon  the 
subject  has  been  reviewed  by  the  Court  of  Exchequer 
in  the  case  of  Molton  v.  Camroux.(/t)  This  was  an 
action  for  money  had  and  received,  brought  by  the  ad- 
ministrator of  an  intestate,  to  recover  from  an  annuity 
society  the  price  paid  by  the  intestate  for  annuities 
granted  by  the  society.  The  ground  was,  that  the  in- 
testate was  not  of  sound  mind  when  he  paid  the  money. 
The  elaborate  judgment  delivered  by  Pollock,  C.  B., 
will  amply  repay  an  attentive  perusal.  "  As  far  as  we 
are  aware,"  the  Court  said,  "this  is  the  *first  r:-::o9q-| 
case  in  which  it  has  been  broadly  contended 
that  the  executed  contracts  of  a  lunatic  must  be  dealt 
with  as  absolutely  void,  however  entered  into,  and 
although  perfectly  fair  and  bond  fide,  reasonable,  and 
without  notice  on  the  part  of  those  who  have  dealt  with 
the  lunatic ;"  and  the  Court  refused  to  allow  the  money 
to  be  recovered  back.  The  case  was  carried  by  a  writ 
of  error  into  the  Court  of  Exchequer  Chamber,  (/)  and 
that  Court  laid  down  (affirming  the  judgment  of  the 
Court  below),  that  when  the  lunatic's  state  of  mind  was  1} 
unknown  to  the  other  contracting  party,  and  no  advan- 11 
tage  was  taken  of  him,  and  the  contract  was  not  merely  [l 
executory,  but  executed  in  the  whole  or  in  part,  and  y 

(i)  M.  &  W.  106,  n.  (/c)  2  Ex.  487. 

{I)  Molton  V.  Gamroux,  4  Ex.  17  ;  Campbell  v.  Hooper,  24  L.  J.  (Ch.) 
644. 

H.  531 ;  Bond  v.  Bond,  7  Allen  1 ;  Hovey  v.  Chase,  52  Me.  304 ;  Mad- 
dox  V.  Simmons,  31  Ga.  512  ;  Somers  v.  Pumphrey,  24  Ind.  231  ;  Cain  «. 
Wasford,  33  Md.  23 ;  Hall  v.  Un^er,  2  Abb.  U.  S.  507 ;  Staples  v.  Wel- 
lington, 58  Me.  453  ;  Boyd  v.  Boyd,  66  Penn.  St.  283  ;  Musselman  v. 
Craven,  47  Ind.  1. 


323  smith's  law  of  contracts. 

the  parties  cannot  be  restoi^ed  to  their  original  position, 
the  contract  is  not  void  on  account  of  lunacy.  A  sub- 
sequent case  of  Beavan  v.  McDonnell (m)  differed  in 
some  degree  from  the  one  last  cited.  The  action  was 
brought  to  recover  a  deposit  paid  on  a  contract  for  the 
purchase  of  real  estate,  the  title  of  which  the  plaintiff 
was  to  accept  unless  he  objected  within  a  specified  time. 
It  was  admitted  upon  the  pleadings,  that  at  the  time 
the  plaintiff  entered  into  the  contract  he  was  a  lunatic, 
and  therefore  incapable  of  contracting,  or  of  under- 
p=^94.1  standing  *the  meaning  of  a  contract,  or  of  man- 
aging his  affairs,  and  that  the  contract  was  of 
no  use  or  benefit  to  him,  but  that  his  state  was  unknown 
to  the  defendant.  The  Court  said  that  the  contract  was 
entered  into  by  the  defendant  fairly  and  in  good  faith, 
and  without  knowledge  of  the  lunacy ;'  and  being'  a 
transaction  completely  executed,  so  far  as  the  deposit 
was  concerned,  the  defendant  had  done  all  he  ought  to 
do  to  make  it  his  own.  The  plaintiff  had  had  all  he 
bargained  for — the  power  of  buying  an  estate,  and  a 
title  established  in  a  given  time,  on  payment  of  the 
residue  of  the  purchase-money.  The  Court  thought  the 
case  came  within  the  principle  upon  which  Molton  v. 
Camroux  was  decided,  and  that  it  made  no  difference 
that  it  was  admitted  that  the  plaintiff  was  incapable  of 
understanding  the  meaning  of  contracts ;  whereas  in  the 
former  case  it  was  not  necessary  to  be  inferred  that  he 
was  incapable  of  knowing  the  nature  of  his  acls.  As 
a  lunatic  is  liable  upon  such  contracts  entered  into  by 
himself,  so  he  is  liable  for  necessaries  furnished  to  his 
wife,  (n)  he  having  become  lunatic  since  the  marriage ; 

[m)  23  L.  J.  (Ex.)  94  ;  9  Ex.  309,  s.  c.  See  23  L.  J.  (Ex.)  326  ;  10  Ex. 
184 ;  Moss  V.  Tribe,  3  Fost.  &  Finl.  9. 
{n)  Head  v.  Legard,  6  Ex.  636. 


PARTIES   TO   CONTRACTS.  324 

for,  by  contracting  the  relation  of  marriage,  a  husband 
takes  on  himself  the  duty  of  supplying  his  wife  with 
necessaries;  and  if  he  does  not  perform  that  duty,  either 
through  his  own  fault  or  in  consequence  of  a  misfortune, 
such  '-'as  lunacy,  the  wife  has  by  reason  of  that  rr^oo^-i 
relation  an  authority  to  procure  them  herself, 
and  the  husband  is  responsible  for  what  is  so  supplied. 
But  it  would  seem  to  be  the  better  opinion  that  an  ex- 
ecutory contract  entered  into  by  a  lunatic  of  non-sane  f 
mind  at  the  time  he  entered  into  it,  cannot  be  enforced 
against  him;  sed  qiicere. 

As  the  law  regarding  the  contracts  of  lunatics  has /^ 
experienced  some  alteration,  so  also  has  the  law  regard/ 
ing  contracts  entered  into  by  the  class  of  persons  whom 
I  shall  next  specify, — I  mean  persons  deprived  of  the 
use  of  their,  ordinary  understanding  by  intoxication. 
It  has  been  always  admitted  that  if  one  man,  by  con- 
trivance and  stratagem,  reduced  another  to  a  state  of 
inebriety,  and  induced  him,  while  in  that  state,  to  enter 
into  a  contract,  it  would  be  void  upon  the  ordinary 
ground  of  fraud;  for  the  liquor  would  be  in  such  case 
an  instrument  used  by  the  one  party  to  assist  him  in 
his  plot  against  the  other. (o)^  But  it  has  been  sup- 
posed that,  where  the  drunkenness  of  the  contracting 
party  was  occasioned,  not  by  the  fraud  of  the  contractee, 
])ut  by  his  own  folly,  he  could  not  in  such  a  case  set  it 
up  as  a  defence ;  since,  by  doing  so,  he  w^ould  take  ad- 
vantage of  his  own  wrong.  You  w^ill  see  this  view 
taken  in  Co.  Litt.  247  a,  and  even  so  late  as  Cory  v. 
Cory.(yj)  There  are,  however,  ^several  late  rH:q9^-] 
cases,  in  which  it  seems  to  have   been  treated 

(o)  Gre<^ory  v.  Eraser,  3  Camp.  454;  Brandon  v.  OJd,  3  Car.  &  P.  (14 
E.  C.  L.  R.)  440.  [p]  1  Yes.  19. 

^  Hotchkiss  V.  Fortson,  7  Yerg.  67 ;  Harvey  v.  Pecks,  1  Muuf.  S,. — r. 


oJb  SMITH  S    LAW    OF   CONTRACTS. 

as  erroneous.      In  Pitt  v.   Smith,  (5')    issue   had   been 
joined  upon  the  question  whether  there  was  an  agree- 
ment between  the  plaintiff  and  defendant  for  the  sale  of 
an  estate.     It  was  proved  that  in  fact  there  was  an 
agreement  signed,  but  one  of  the  parties  when  he  signed 
it  was  intoxicated:  Lord  Ellenborough  said: — "There 
j  was  no  agreement  between  the  parties,  if  the  defendant 
J  was    intoxicated,   in    the    manner   supposed,   when   he ; 
I  signed  this  paper.     He  had  not  an  agreeing  mind.     In-' 
'   toxication  is  good  evidence  upon  a  plea  of  non  est  factum 
I    to  a  deed,  of  non  concessit  to  a  grant,  or  7ion  assumpsit 
'^   to  a  promise;"  and  he  directed  a  nonsuit,  which  the  full 
Court  afterwards  refused  to  set  aside.     In  Fenton  v. 
Hollo  way  (r)  Lord  Ellenborough  again  ruled  in  the  same 
manner. (s)^     And  it  may  be  considered  as  now  settled, 

(q)  3  Camp.  33.  (r)  1  Stark.  (2  E.  C.  L.  R.)  126. 

[s]  See  Sentance  v.  Poole,  3  Car.  &  P.  (14  E.  C.  L.  R.)  1  ;  Cooke  o. 
Clayworth,  18  Ves.  12. 

^  In  Gore  v.  Gibson,  13  M.  &  Wels.  625,  Pollock,  C.  B.,  referred  to  the 
conclusion  drawn  fi-om  the  authorities  by  Chancellor  Kent,  in  his  Com- 
mentaries (vol.  ii.  p.  451),  viz.  :  that  no  contract  made  by  a  person  in 
that  state,  when  he  does  not  know  the  consequences  of  his  acts,  is  bind- 
ing upon  him  ;  and  added,  that  it  seemed  to  be  in  accordance  with  reason 
and  justice.  It  is  immaterial,  moreover,  whether  the  drunkenness,  if 
carried  to  that  extent,  were  voluntary,  or  the  result  of  design  on  the 
other  party  :  Barratt  v.  Buxton,  2  Aikin  167  ;  Wigglesworth  v.  Steers,  2 
lien.  &  Munf.  70 ;  Prentice  v.  Achorn,  2  Paige  30 :  Rooke  v.  Clayworth, 
18  Ves.  15.  And  on  the  other  hand,  it  is  equally  well  settled,  that  mere 
intoxication,  unless  carried  so  far  as  to.  benumb  the  understanding,  will 
not  of  itself  constitute  a  defence  to  the  performance  of  a  contract,  or 
afford,  a  ground  for  its  rescission  if  executed :  Belcher  v.  Belcher,  10  Yerg. 
121 ;  Pittinger  v.  Pittinger,  2  Green  Ch.,156  ;  Ford  v.  Hitchcock,  8  Ohio 
214  ;  Jenners  v.  Howard,  6  Blackf.  240.  Whether  the  intoxication  was 
so  complete  as  to  destroy  "  the  agreeing  mind,"  is,  of  course,  a  question 
for  the  jury:  Burroughs  v.  Richmond,  1  Green  (Law)  238.  If,  however, 
it  were  proved  that  advantage  was  taken  of  a  person  excited  by  drink, 
though  not  to  such  an  extent  as  to  impair  all  his  reasoning  faculties,  it 
is  apprehended  that  at  law  the  case  might  be  brought  within  the  ground 
of  fraud,  although  the  contracting  party  might  not  have  been  directly 


PARTIES    TO    CONTRACTS.  326 

that  intoxication  avoids  a  contract  when  it  is  so  com- 
plete as  to  prevent  a  man  from  knowing  what  he  is 
about:  in  that  state  he  is,  in  common  parlance,  "not 
himself,"  nor  are  his  acts  his  own.  Thus,  in  Gore  v. 
Gibson,  (t)  where  the  indorsee  of  a  bill  sued  the  in- 
dorser,  who  pleaded  drunkenness  at  the  time  of  the  in- 
dorsement, it  was  held  that  this  was  a  good  answer  to 
the  action.  "It  is  just  the  same,"  said  Mr.  Baron 
Alderson,  in  that  case,  "as  *if  the  defendant  rs!;q97-i 
had  written  his  name  upon  the  bill  in  his  sleep, 
in  a  state  of  somnambulism."  Some  of  the  dicta,  how- 
ever, of  the  judges  in  the  case  last  cited,  which  seem 
to  go  the  length  of  holding  such  a  contract  absolutely 

(/)  13  M.  &  W.  623. 

incited  to  drink  by  the  other  ;  and  it  is  well  settled  that  equity  will  afford 
relief  under  such  circumstances  :  Reynolds  v.  Wall,  1  Wash.  164  ;  Crane 
V.  Conklin,  Saxton  (N.  S.)  346  ;  Hutchinson  v.  Tindell,  2  Green  Ch.  357  ; 
Pittinger  v.  Pittinger,  Ibid.  156 ;  Conant  v.  Jackson,  16  Verm.  335 : 
Campbell  v.  Spencer,  2  Binn.  133  ;  tind  so  when  the  mind  is  enfeebled  by 
habitual  intoxication :  AVilson  v.  Bigger,  7  W.  &  S.  124 ;  Morrison  v. 
M'Cord,  2  Dev.  &  Batt.  Eq.  221.  It  is  evident,  however,  that  although 
one  may,  by  reason  of  drunkenness,  be  incapable  of  contracting,  yet  his 
contract  may  be  ratified  by  his  retaining  the  subject  of  the  contract  when 
sober  :  Gore  v.  Gibson,  supra. — r. 

Drunkenness  does  not  render  a  deed  made  under  its  influence  abso- 
lutely void,  but  only  voidable  :  so  long  as  the  grantor  in  the  deed  acqui- 
esces in  it,  it  cannot  be  impeached  by  third  persons  on  the  ground  that 
it  was  executed  by  him  when  drunk  :  Eaton  v.  Perry,  29  Mo.  96.  If  in- 
toxication is  carried  so  far  that  the  reasoning  powers  are  destroyed,  the 
contract  is  void ;  but  when  it  falls  short  of  this,  the  contract  will  not  be 
avoided,  unless  undue  advantage  has  been  taken  by  one  party  of  the  con- 
dition of  the  other :  Birdsong  v.  Birdsong,  2  Head.  289  ;  Mansfield  v. 
Watson,  2  Clarke  111 ;  Johnson  v.  Rockwell,  12  Ind.  76.  One  found  by 
inquisition  to  be  an  habitual  drunkard  is  thereby  rendered  incompetent 
subsequently  to  enter  into  a  contract  which  will  bind  his  estate :  Inhoff 
V.  Witmer,  31  Penn.  St.  243.  See,  generally,  Henry  v.  Ritenour,  31  Ind. 
136;  Caulkins  v.  Fry,  35  Conn.  170;  Philan  v.  Gardner,  43  Cal.  306; 
Reinskopf  v.  Rogge,  37  Ind.  207  ;  Joist  v.  Williams,  42  Ind.  565 ;  Johns 
V.  Fritchey,  39  Md.  258. 


327  smith's  law  of  contracts. 

'i  void,  have  not  been  supported  in  all  their  fulness ;  and 

I  it  has  been  recently  held  that  the  contract  of  a  man  too 

/   drunk  to  know  what  he  is  about,  is  voidable  only,  and 

I    not  void,  and  therefore  capable  of  ratification  by  him 

when  he  becomes  sober,  (w) 

I  have  now  to  direct  your  attention  to  aliens.  And 
we  again  subdivide  this  class  into  two  minor  ones,  of 
alien  friends,  and  alien  enemies.  With  regard  to  alien 
friends,  they  have  a  right  to  contract  with  the  subjects 
of  this  country,  and  may  sue  on  such  contracts  in  the 
Courts  of  this  country,  {v)  whether  the  contract  was  made 
in  England  or  abroad ;  with  this  distinction,  that,  if  it 
was  made  in  England,  it  is  expounded  according  to  the 
law  of  England  -^  if  abroad,  according  to  the  law  of  the 
country  where  it  was  made  :  but,  whether  it  was  made 
abroad  or  in  England,  the  person  who  sues  on  it  here 
must  take  the  remedy  here  as  he  finds  it,  although,  per- 
haps, abroad  there  might  have  been  a  more  advantageous 
I  ■  one.  Thus,  for  instance,  according  to  the  law  of  Eng- 
land, if  a  bill  of  exchange  be  payable  to  A.  or  order, 
rH:o9o-|  A.'s  ^indorsement  in  blank,  that  is,  his  simply 
writing  his  name  on  the  back,  is  sufficient  to 

(m)  Matthews  v.  Baxter,  L.  R.  8  Ex.  132,  42  L.  J.  (Ex.)  73. 
{v)  Bac.  Abr.  Aliens,  D. ;  Com.  Dig.  Alien,  C.  5. 

^  Provided  the  subject  of  the  contract  be  personal  property.  But  it  is 
well  settled  on  this  side  of  the  Atlantic  that  any  interest  or  title  to  real 
estate  can  only  be  acquired  or  transferred  according  to  the  lex  loci  ret 
sitce,  and  not  according  to  the  lex  loci  contractus :  Cutter  v.  Davenport,  1 
Pick.  81  ;  Horsford  v.  Nichols,  1  Paige  220;  Chapman  v.  Robertson,  6 
Paige  630 ;  Wills  v.  Cowper,  2  Ham.  124.  Such,  too,  seems  to  be  the 
law  in  England  :  Robinson  v.  Bland,  1  W.  Black.  246  ;  2  Burr.  1079  ; 
Scott  V.  Allworthy,  2  Dow  &  Clarke  412  ;  Fergusson  on  Mar.  &  Div. 
395  ;  Corts  v.  Hutton,  14  Ves.  541  ;  Birtwhistle  v.  Vardill,  5  B.  &  C.  (11 
E.  C.  L.  R.)  438  ;  9  Bligh  32.  Some  of  the  foreign  jurists,  however,  do 
not  recognise  this  distinction  between  movables  and  immovables.  See 
Story's  Conflict  of  Laws,  f  52,  &c. — R. 


PARTIES    TO    CONTRACTS.  328 

transfer  the  property  in  it  to  any  one  to  whom  he  may 
think  fit  to  hand  it ;  whereas,  according  to  the  law  of 
France,  a  special  indorsement — that  is  an  indorsement 
naming  the  transferree — is  necessary  for  the  same  pur- 
pose. Now,  if  an  action  be  brought  in  the  Queen's 
Bench  here  by  the  indorsee  of  an  English  bill,  he  wall 
recover  on  showing  an  indorsement  in  blank,  whereas, 
if  the  action  were  brought  by  the  indorsee  of  a  French 
bill,  he  would  be  obliged  to  show  a  special  indorsement. 
And  the  reason  of  this  is,  that  the  law  of  the  country 
where  a  contract  is  made  being  by  implication  incorpo- 
rated into  the  contract,  it  is  considered  to  be  part  of 
the  contract  arising  on  such  a  bill  made  in  England, 
that  it  shall  be  transferable  by  an  indorsement  in  blank  ; 
and  part  of  the  contract  arising  on  a  French  bill,  that 
it  shall  be  transferable  only  by  a  special  indorsement. 
This  was  so  held  in  Trimbey  v.  Vignier.(«^)  [In  the 
recent  case,  however,  of  Bradlaugh  v.  De  Rin,(:?:)   the 

Court  of  Exchequer  Chamber,  without  at  all    ^ 

.     .  .  .  [3291 

^impugning  the  principle  on  which  Trimbey  v.    ^        -' 

Vignier  was  decided,  thought  that  the  Court  of  Common 
Pleas  in  that  case  had  fallen  into  a  mistake  of  fact  as  to 
what  the  French  law  was,  and  that  there  was  nothing, 
either  in  that  case  or  in  the  case  of  Bradlaugh  v.  De 
Rin,  to  show  that  by  the  French  law  the  holder  of  a 
bill  indorsed  to  him  in  blank  could  not  sue  the  acceptor. 
The  case,  however,  of  Trimbey  v.  Vignier  still  illus- 
trates well  the  principle  on  wdiich  the  lex  loci  contractus 

[w]  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  151.  See  Rothschild  v.  Carrie,  1 
Q.  B.  (41  E.  C.  L.  R;)  43  ;  Gibbs  v.  Fremont,  22  L.  J.  (Ex.)  302;  9  Ex. 
25  :  Allen  v.  Kerable,  6  Moo.  P.  C.  314 ;  Thompson  v.  Bell,  23  L.  J.  (Q. 
B.)  159  ;  3  E.  &  B.  (77  E.  C.  L.  R.)  236.  See  Brook  v,  Brook,  27  L.  J. 
(Ch.)  401  ;  Connelly  v.  Connelly,  7  Moo.  P.  C.  438. 

(x)  L.  R.  5  C.  P.  473  (Ex.  Ch.)  ;  39  L.  J.  (C.  P.)  254,  reversing  s.  c, 
L.  R.  3  C.  P.  538 ;  37  L.  J.  (C.  P.)  318. 


329  smith's  law  of  contracts. 

is  applied,  though  an  erroneous  view  may  there  have 
been  taken  of  what  the  lex  loci  actually  was.] 

Again,  to  an  action  on  a  bill  of  exchange,  the  French 
period  of  limitation  is  five  years,  ours  is  six  ;  now,  if  an 
action  be  brought  here  on  a  French  bill,  the  courts  here 
will  not  adopt  the  French  period  of  limitation,  but  our 
own,  and  so  the  payee  may  recover  here  at  any  time 
within  six  years,  though  in  France,  where  the  bill  was 
made,  he  must  have  brought  this  action  within  ^ye;  the 
reason  for  which  is,  that  the  period  of  limitation  within 
■which  a  remedy  is  to  be  pursued  is  part  and  parcel  of 
the  remedy  itself,  and,  though  a  contract  is  interpreted 
by  the  law  of  the  country  where  it  is  made,  the  remedy 
must  be  pursued  as  it  exists  in  the  country  where  the 
suit  is  brought,  {jj) 

r:;:oon-|  "^'I  havo  ratlicr  digressed,  for  the  purpose  of 
pointing  out  these  two  rules  to  you.  They  are 
two  of  the  most  celebrated  principles  of  our  law,  and 
there  is  scarcely  any  question  arising  on  the  foreign 
contract  which  they  will  not  solve.  You  will  see  them 
carried  out  and  explained  in  British  Linen  Company  v. 
Drummond,  {z)  De  la  Vega  v.  Vianna.  {a)  ^ 

So  far  with  regard  to  contracts  made  with  alien 
friends ;  now  with  regard  to  alien  enemies,  i.  e.,  aliens 
whose  government  is  at  war  with  this  country.  All 
contracts  made  with  them  are  wholly  void.(^)^    Indeed, 

{y)  Hubert).  Steiner,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  202;  Cocks  v. 
Purday,  5  C.  B.  (57  E.  C.  L.  R.)  860 ;  Leroux  v.  Brown,  22  L.  J.  (C.  P.) 
1  ;  Ruckmaboye  v.  Mottichund,  8  Moo.  P.  C.  4. 

(z)  10  B.  &  C.  (21  E.  C.  L.  R.)  903.  ' 

[a]  1  B.  &  Ad.  (20  E.  C.  L.  R.)  284. 

(&)  Brandon  v.  Nesbitt,  6  T.  R.  23  ;  De  Wahl  v.  Braune,  25  L.  -J.  (Ex.) 
343 ;  1  H.  &  N.  178  ;  Willison  v.  Patteson,  7  Taunt.  (2  E.  C.  L.  R.)  439  ; 
Esposito  V.  Bowden,  27  L.  J.  (Q.  B.)  17  ;  7  E.  &  B.  (90  E.  C.  L.  R.)  763. 

^  The  student  will  find  all  the  law  upon  this  interesting  subject  col- 
lected in  the  8th  and  14th  Chapters  of  Story's  Conflict  of  Laws. — r. 
^  There  is  an  exception  to  this  rule  which  naturally  springs  from  it, 


PARTIES   TO    CONTRACTS.  330 

in  one  case  it  was  decided,  that,  if  the  contract  was 
made  during  war,  it  does  not  become  capable  of  being 
enforced  even  on  the  return  of  peace ;  although,  if  a 
contract  be  made  with  an  alien  friend,  and  a  war  after- 
wards breaks  out  between  his  country  and  this,  the 
effect  is  to  suspend  his  right  to  sue  upon  the  contract 
until  the  return  of  peace,  not  wholly  to  disqualify  him 
from  suing,  (c) 

It  seems  sufficiently  connected  with  the  subject  of 
this  work  to  add,  that,  by  the  Common  Law,  aliens 
may  acquire  and  possess  within  this  realm,  *by 
gift,  trade,  or  other  means,  any  goods  personal  '-  "^  -I 
whatever,  as  well  as  an  Englishman,  (c?)  And  by  the 
Naturalization  Act,  1870  (33  &  34  Vict.  c.  14),  s.  2, 
real  and  personal  property  of  every  description  may  be 
taken,  acquired,  held,  and  disposed  of  by  an  alien  in  the 
same  manner  in  all  respects  as  by  a  natural-born  British 
subject;  and  a  title  to  real  and  personal  jjroperty  of 
every  description  may  be  derived  through,  from,  or  in 
succession  to  an  alien,  in  the  same  manner  in  all  respects 
as  through,  from,  or  in  succession  to  a  natural- born 
British  subject. 

Another  class  of  persons  who  are  disabled  from  en- 

(c)  Flindt  V.  Waters,  15  East  260;  Alcenius  v.  Nygrin,  24  L.  J.  (Q. 
B.)  19. 

{d)  Calvin's  case,  7  Co.  Rep.  1. 

which  is,  that  contracts  made  with  an  alien  enemy  for  the  payment  of 
ransom-money  or  for  subsistence,  can  be  enforced.  Thus,  in  Antoine  v. 
Morehead,  6  Taunt.  (1  E.  C.  L.  R.)  237,  an  alien  to  whom  was  indorsed 
a  bill  of  exchangee,  drawn  by  one  English  subject,  detained  a  prisoner  in 
France,  upon  another  subject,  was  held  entitled  to  recover  its  amount  in 
England  after  the  return  of  peace. 

In  the  well-known  case  of  Griswold  v.  Waddington,  15  Johns.  57,  in 
error,  16  Ibid.  438-510,  the  whole  law  upon  the  subject  "of  contracts  with 
alien  enemies  was  elaborately  examined  in  an  able  opinion  by  Mr.  Chan- 
cellor Kent. — R. 


Ooi  SMITH  S   LAW    OF    CONTRACTS. 

forcing  contracts  are  outlaws,  and  persons  under  sen- 
tence for  felony.  ((?)  They  are,  however,  liable  upon 
the  contracts  made  by  them  while  in  that  situation, 
though  incapable  of  taking  advantage  of  them.(/) 
This  disability  is  removed  by  pardon;  and  when  the 
attainder  or  outlawry  is  removed,  the  party  may  con- 
tract and  sue  as  before.  (^)  It  should  be  observed, 
however^  that  the  law  as  to  the  inability  of  felons  to 
enforce  contracts  has  been  moditied  by  33  &  34  Vict, 
c.  23,  which  was  passed  on  the  4th  of  July  1870. 
Sect.  1  of  that  Act  provides  that,  "  from  and  after  the 
passing  of  this  Act,  no  confession,  verdict,  inquest,  con- 
r*oon-j  viction,  or  '^judgment  of  or  for  any  treason  or 
felony  or  felo  de  se,  shall  cause  any  attainder 
or  corruption  of  blood,  or  any  forfeiture  or  escheat, 
provided  that  nothing  in  this  Act  shall  affect  the  law  of 
forfeiture  consequent  upon  outlawry."  The  Act  then, 
in  sect.  6,  defines  the  word  "  convict,"  as  thereinafter 
used,  to  mean  any  person  against  whom,  after  the  pass- 
ing of  the  Act,  judgment  of  death  or  of  penal  servitude 
shall  have  been  pronounced  or  recorded  by  any  court 
of  competent  jurisdiction  in  England,  Wales,  or  Ireland, 
upon  any  charge  of  treason  or  felony.  Sect.  7  states 
when  a  "convict"  ceases  to  be  subject  to  th-e  operation  of 
the  Act.  And  sect.  8  disables  a  "convict"  from  suing  or 
making  any  contract  while  subject  to  the  operation  of  the 
Act.  Sect.  30,  however,  suspends  the  disabilities  of  sect. 
8  as  to  a  "convict"  lawfully  at  large  under  a  license. 

There  is  one  other  class,  I  was  about  to  say  of  in- 
dividuals, but  that  would  have  been  incorrect  (for, 
although  persons  in  the  eye  of  the  law,  they  are  not  in- 

(e)  Bullock  r.  Dodds,  2  B.  &  Aid.  (5  E.  C.  L.  R.)  258. 
(  /■)  Kamsey  v.  M'Donald,  Foster,  C.  L.  61. 
[y)  Bac.  Abr.  '.'  Outlawry;'  H. 


PARTIES    TO    CONTRACTS.  OOZ 

clividnals  in  common  parlance),  regarding  whose  power 
of  contracting  I  have  a  few  words  to  say, — I  mean  cor- 
porations aggregate.  A  corporation  aggregate  consists,  ■ 
as  you  know,  of  a  number  of  individuals  united  in  suchf 
a  manner  that  they  and  their  successors  constitute  h\\%, 
one  person  in  law-  Thus,  the  mayor,  aldermen,  and 
burgesses  of  a  borough  are  a  corporation,  and  as  such 
have  an  existence  distinct  from  that  of  the  individual 
mayor,  and  of  *the  individuals  enjoying  the 
franchise  of  burgess,  or  post  of  alderman.  But  L  '  '  '-*J 
then,  this  corporate  existence  being  an  ideal  one,  and 
the  creature  of  the  law,  it  is  obviously  impossible  that 
the  corporation  can  contract  iii  the  same  way  as  an  or- 
dinary person.  Accordingly  the  law,  the  creature  of 
which,  as  I  have  said,  it  is,  has  provided  for  it  a  mode 
of  contracting,  namely  by  its  common  seal,  which,  being 
affixed  to  the  contract,  authenticates  it,  and  makes  it 
the  deed  of  the  corporation ;  and,  as  a  general  rule,  that 
is  the  only  way  in  which  a  .corporation  can  contract.  (7^)^ 
A  few  instances  will  show  the  force  and  the  application 
of  this  important  rule.  Thus,  in  The  Mayor  of  Ludlow 
V.  Charlton,  («')  the  defendant  had  laid  out  a  sum  of 
money  in  pulling  down  and  altering  an  inn  and  doing 
other  work,  at  the  request  and  for  the  convenience  of 
the  corporation,  confiding  in  their  promise  to  pay  him 
that  sum  for  such  work ;  but  though  he  laid  out  more 
than  that  sum,  he  was  unable  to  charge  the  corporation 
with  it,  from  having  neglected  the  very  obvious  and 

[h]  Com.  Dig.  Franchises,  F.  13.  {i)  6  M.  &  W.  815.    ' 

^  A  corporation  may  adopt  the  seal  of  another,  or  an  ink  impression  : 
Cro^isman  v.  Ililltown  Co.,  3  Grant  225.  "When  agents  executing  an  in- 
strument in  behalf  of  a  corporation,  sign  their  own  names  and  affix 
their  own  seals,  such  seals  are  merely  nugatory ;  and'  the  instrument 
will  be  binding  on  the  corporation  as  a  simple  contract  if  it  is  in  other 
respects  valid:  Regents  v.  Detroit  Society,  12  Mich.  138. 


6o6  SMITHS    LAW    OF    CONTRACTS. 

easy  mode  of  binding  the  corporation  by  deed,  as  the 
law  prescribes.  Even  an  entry  by  the  corporation  in 
their  own  books  of  a  minute  of  this  agreement,  was  not 
admitted  to  bind  them.  In  Arnokl  v.  The  Mayor  of 
Poole,  (y)  the  plaintiff  had  performed  the  duties  of  at- 
r^.ooA-  torney  to  the  corporation  of  that  place,  *which 
had  incurred  a  large  debt  to  him ;  but  having 
only  been  appointed  by  the  mayor  and  council,  and  not 
under  the  seal  of  the  borough,  he  could  not  recover  his 
costs,  although  the  council  of  the  borough  had  passed  a 
resolution  directing  the  business  to  be  done  by  him,  and 
knew  of  its  progress.  In  Paine  v.  The  Guardians  of 
the  Poor  of  the  Strand  Union,  (^)  the  guardians,  who 
are  a  corporation  by  statute,  had  ordered  the  plaintiff, 
a  surveyor,  to  make  a  survey  and  a  map  of  the  rateable 
property  in  a  parish  which  was  part  of  the  union,  but 
as  the  plaintiff  had  not  insisted  upon  having  his  retainer 
under  seal,  he  was  unable  to  recover  for  the  survey  or 
the  map. 

This  general  rule,  however,  has  from  the  earliest 
traceable  periods  been  subject  to  exceptions,  the  deci- 
sions as  to  which  furnish  the  principles  on  which  they 
have  been  established,  and  are  instances  illustrating  its 
application,  but  are  not  to  be  taken  as  so  prescribing  in 
terms  the  exact  limit,  that  a  merely  circumstantial 
difference  excludes  from  the  exception.  This  princi- 
I  pie  appears  to  be  convenience,  amounting  almost  to 
necessity.  Hence,  the  retainer  by  parol  of  an  inferior 
servant,  authorizing  another  to  drive  away  cattle,  dam- 
age feasant,  to  make  a  distress  or  the  like,  the  doing  of 
acts  very  frequentl}^  recurring,  or  too  insignificant  to 

ij)  4  M.  &  G.  (43  E.  C.  L.  R.)  860.     See  Queen  v.  Mayor,  &c.,  of 
Stamford,  6  Q.  B.  (51  E.  C.  L.  R.)  433. 
{k)  8  Q.  B.  (55  E.  C  L  R.)  326. 


PARTIES   TO   CONTRACTS.  334 

be  worth,  the  trouble  of  affixing  the  common  seal,  are 
established  '^exceptions.  In  such  cases  the  p-.^Q--! 
head  of  the  corporation  has  from  the  earliest  ^  -■ 
time  been  considered  as  delegated  by  the  rest  to  act  for 
them.(/)  Much  illustration  as  to  thesef  acts  is  afforded 
by  the  case  of  Smith  v.  Cartwright,  decided  in  the  Ex- 
chequer Chamber,  (m)  It  was  an  action  by  one  of  the 
coal-meters  of  King's  Lynn,  for  disturbance  in  his  office 
of  coal-meter,  in  the  exercise  of  which  he  claimed  the 
right  to  weigh  coals  brought  into  the  port,  and  to 
take  a  certain  fee  for  weighing  them ;  and  it  became  a 
material  question  whether  he  was  duly  appointed  meter 
or  not.  He  had  not  been  appointed  under  seal.  The 
Court  held,  that,  as  the  right  he  claimed  was  to  dis- 
charge certain  duties  in  regard  to  the  property  of  third 
persons  altogether  against  their  will,  and  to  demand  a 
fee  for  so  doing,  this  right  must  be  by  reason  of  his 
having  an  office,  and  not  being  a  mere  servant  of  the 
corporation,  and  consequently  his  appointment  must,  in 
order  to  be  valid,  be  under  the  seal  of  the  corporation. 
Had  this  not  been  so,  but  if  the  corporation  had  merely 
claimed  a  right  to  measure  by  persons  appointed  by 
themselves,  such  persons  would  be  merely  servants,  and 
might  well  be  appointed  without  seal.  You  will  also 
see  an  enumeration  of  these  acts  in  Com.  Dig.  Fran- 
chises, F.  13.(?^)  They  are  treated  by  "^'the  rts^qo/^-i 
Court  of  Common  Pleas,  in  the  great  case  of 
The  Fishmongers'  Company  v.  Robertson,  (o)  as  so  well 
known  as  to  requii'e  no  enumeration  in  the  judgment  of 
the  Court.     They  are  apparently  as  ancient  as  the  doc- 

(Z)  The  Mayor  of  Ludlow  ».  Charlton,  ante^  p.  333. 
(m)  20  L.  J.  (Ex.)  401  ;  6  Ex.  927,  s.  c. 
(?^)  See  Bro.  Abr.  Corp.  K. ;  and  in  Horn  v.  Ivy,  1  Vent.  47. 
(o)  5  M.  &  Gr.  (44  E.  C.  L.  K.)  l'J2. 
24 


oob  SMITH  S   LAW    OF    CONTRACTS. 

trine  to  which  they  are  commonly  stated  to  be  excep- 
tions. They  do  not  depend  upon  any  one  principle, 
other  than  that  convenience,  amounting  almost  to  neces- 
sity, which  belongs  to  them  in  their  very  nature,  and 
under  which  they  are  ranked  by  the  Court  of  Queen's 
Bench  in  Church  v.  Imperial  Gas  Light  Company,  (^j) 
There  is,  however,  a  distinction  between  matters  which 
do  and  matters  which  do  not  affect  any  interest  of  the 
corporation.  The  former  must  be  authorized  by  the  cor- 
.  porate  seal.  Thus,  they  must  appoint  a  bailiff  by  deed 
I  for  entering  upon  lands  for  condition  broken,  in  order  to 
I  revest  their  estate;  but  they  need  not  do  so  where  the 
I  bailiff  is  only  to  distrain  for  rent,  {q)  To  this  rule  also, 
the  convenience  of  the  world  has  occasioned  some  other 
exceptions ;  the  principal  of  which  is,  that,  when  a  cor- 
poration has  been  created  for  mercantile  purposes,  it  is 
allowed  to  enter  without  seal  into  certain  contracts 
which  are  usually  entered  into  without  seal  by  commer- 
cial men.  Such  a  corporation  for  instance  may  have 
r*Q^71  power  to  accept  bills  of  exchange,  *but  the 
power  must  either  be  expressly  given  it,  e.  g. 
by  Act  of  Parliament,  or  must  be  necessarily  implied 
from  the  nature  of  the  business  in  which  the  corporation 
is  engaged.  A  railway  company  incorporated  in  the 
usual  way  has  no  such  power,  (r)  In  the  case  of  Church 
V.  The  Imperial  Gas  Light  Company  (s)  the  defendants 

(^)  6  A.  &  E.  (33  E.  C.  L.  R.)  846.  • 

\q)  Smith  V.  Birmingham  Gas  Co.,  1  A.  &  E.  (28  E.  C.  L.  R.)  526  ; 
Parol  V.  Moor,  Plow.  91  ;  Jenkins,  3d  Cent,  case  68.  See  Hall  v.  Mayor, 
&c.  of  Swansea,  5  Q.  B.  (48  E.  C.  L.  R.)  526. 

(r)  Bateman  v.  Mid-Wales  Rail.  Co.,  L.  R.  1  C.  P.  499  ;  35  L.  J.  (C. 
P.)  205 ;  Broughton  v.  Manchester  Water  Works,  4  B.  &  Aid.  (6  E.  C. 
L.  R.)  1.  See  also  Smith's  Merc.  Law,  7th  ed.,  by  Dowdeswell,  pp.  105-6. 
As  to  the  power  of  companies  incorporated  under  the  "  Companies'  Act, 
1862,"  to  accept  bills  of  exchange,  see  jwst,  p.  362. 

[s)  6  A.  &  E.  (33  E.  C.  L.  R.)  846  ;  R.  v.  Bigby.  3  P.  Wms.  419 ;  Bev- 


PARTIES    TO   CONTRACTS.  337 

were  empowered,  by  the  Act  incorporating  them,  to  make 
gas,  and  to  sell  and  dispose  of  it  in  such  manner  as  they 
should  think  proper,  with  full  power  to  supply  and  light 
with  gas  the  shops,  houses,  streets,  &c.,  in  the  places 
mentioned.  The  statute  further  enacted  that  the  direc- 
tors should  have  the  custody  of  the  common  seal,  with 
full  power  to  use  it  for  the  affairs  and  concerns  of  the 
company,  and  should  have  power  to  direct  and  transact 
the  affairs  and  business  of  the  company,  as  well  as  lay- 
ing out  and  disposing  of  money  for  the  purposes  of  the 
same,  as  in  contracting  for  and  purchasing  lands  and 
tenements,  materials,  goods  and  chattels  for  the  use  of 
the  company,  &c.,  and  selling  and  disposing  of  r*oon-| 
all  *lands,  &c.,  and  all  articles  produced  as 
aforesaid.  The  defendants  entered  into  a  simple  contract 
with  the  plaintiff,  to  supply  him  with  gas  at  a  certain 
rate,  and  the  Court  held  that  they  had  power  to  enter 
into  this  contract,  and  to  sue  in  assumpsit  for  the  price 
of  the  gas  supplied.  "The  general  rule  of  law,"  said 
the  Court  in  delivering  its  judgment,  '.'is,  that  a  corpo- 
ration contracts  under  its  common  seal;  as  a  general  rule 
it  is  only  in  that  way  that  a  corporation  can  express  its 
will,  or  do  any  act.  Whenever  to  hold  the  rule  appli- 
cable would  occasion  a  great  inconvenience  or  tend  to 
defeat  the  very  object  for  which  the  corporation  was 
created,  the  exception  has  prevailed.  On  the  same 
principle  stands  the  power  of  acceptiii^  bills  of  exchange 
and  issuing  promissory  notes  by  companies  incorporated 
for  the  purposes  of  trade,  with  the  rights  and  liabilities 
consequent  thereon.  We  must  understand  this  company 
to  have  been  incorporated  for  the  purpose  of  supplying 

erley  v.  Lincoln  Gas  Co.,  6  A.  &  E.  (33  E.  C.  L.  R.)  829;  Clarke  v.  The 
Guardians  of  the  Cuckfield  Union,  21  L.  J.  (Q.  B.)  349;  Nicholson  v. 
Bradford  Union,  35  L.  J.  (Q.  B.)  176  ;  L.  R.  1  Q.  B.  620. 


338  smith's  law  of  contracts. 

individuals  willing  to  contract  with  them  for  gas-light. 
Such  contracts  are  of  almost  daily  occurrence,  and  to 
hold  that  for  every  one  of  them,  of  the  same  or  less 
amount,  it  was  necessary  to  affix  the  common  seal, 
would  be  so  seriously  to  impede  the  corporation  in  ful- 
filling the  very  purpose  for  which  it  was  created,  that 
we  think  we  are  bound  to  hold  the  case  fairly  brought 
within  the  principle  of  the  established  exceptions." 
r^Q'^Q'l  Upon  similar  reasoning  where  the  Australian 
*Mail  Steam  Navigation  Company  (which  was 
constituted  a  trading  corporation  by  charter  for  the  pur- 
pose of  maintaining  a  communication  by  steam  and 
other  vessels  for  carrying  passengers,  &c.,  between 
Great  Britain  and  Australia),  in  the  performance  and 
for  the  more  effectual  prosecution  of  the  objects  of  their 
charter,  and  by  a  resolution  of  the  directors  duly  en- 
tered into  as  required  by  the  charter,  made  a  parol 
agreement  with  the  plaintiff,  that  in  consideration  of  his 
going  to  Sydney  to  bring  home  one  of  their  ships  which 
was  supposed  to.be  unseaworthy  and  uninsurable,  they 
would  pay  his  passage  out  to  Sydney  and  allow  him  a 
remuneration  for  his  said  services;  the  Court  of  Queen's 
Bench  decided  that  this  contract  being  entered  into  by 
the  company  and  performed  by  the  plaintiff  for  the  ex- 
press purpose  of  preserving  the  ship  and  maintaining 
the  communication  and  carriage  of  passengers,  &c.,  be- 
tween Great  Britain  and  Australia,  the  company  were 
liable  to  pay  him  notwithstanding  that  the  contract  was 
not  under  seal,  (t)  In  another .  case  in  which  the  same 
company  were  the  plaintiffs,  and  in  which  they  had 
bought  by  parol  contract  of  the  defendants  a  quantity 
of  ale  for  the  use   of  the  passengers  on  board  their 

{t)  Henderson  v.  The  Australian  R.  M.  Steam  Nav.  Co.,  24  L.  J.  (Q. 
B.)  322;  5  E.  &  B.  (85  E.  C.  L.  R.)  409. 


PARTIES   TO   CONTRACTS.  339 

steam  vessel,  and  paid  the  defendants  for  the  same,  but 
the  ale  proved  unfit  for  use  ;  the  Court  *of  Ex-  po^n-i 
chequer  held,  that  the  contract,  although  not 
under  seal,  yet  being  executed,  the  defendants  were 
liable  to  the  plaintiffs  in  damages.  (?/)  Again,  where  a 
company  incorporated  under  the  Companies  Act,  1862, 
for  the  working  of  collieries,  contracted,  but  not  under 
seal,  with  an  engineer  for  the  erection  of  a  pumping 
engine  and  machinery  for  use  in  the  colliery,  and  paid 
him  part  of  the  price ;  in  an  action  by  the  company 
against  the  engineer  for  a  breach  of  contract  in  refusing 
to  deliver  the  engine  and  machinery,  it  was  held  that 
the  action,  was  maintainable  though  the  contract  was 
not  under  seal.(t^) 

But  unless  the  nature  of  the  business  for  which  the 
corporation  was  created,  necessarily  implies  the  exist- 
ence of  these  powers  of  contracting  otherwise  than  by 
deed,  it  will  not  have  them.-^     Thus  it  has  been  held(z^) 

(m)  The  Australian  R.  M.  Steam  Nav.  Co.  v.  Marzetti,  24  L.  J.  (Ex.) 
273,  11  Ex.  228  ;  Reuter  v.  Electric  Telegraph  Co.,  26  L.  J.  (Q.  B.)  4G ; 
6  E.  &  B.  (88  E.  C.  L.  R.)  341. 

{v)  South  of  Ireland  Colliery  Company  v.  Waddle,  L.  R.  3  C.  P.  463 ; 
4  C.  P.  617  (Ex.  Ch.)  ;  s.  c,  37  L.  J.  (C.  P.)  211 ;  38  Ibid.  338.  See 
however  now,  stat.  30  &  31  Vict.  c.  131,  s.  37  [post,  p.  361),  as  to  the 
contracting  power  of  companies  incorporated  under  the  Companies  Act, 
1862. 

[w]  Gibson  v.  East  India  Co.,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  262. 

'  It  is  a  general  principle  that  a  corporation  has  no  power  to  enter 
into  any  contract,  not  within  the  scope  of  the  objects  for  which  it  has 
been  chartered,  and  it  has  been  held  that  even  where  it  has  received  and 
enjoyed  the  consideration,  it  may  in  a  suit  upon  the  contract  take  advan- 
tage of  its  defect  of  power.  In  such  cases,  however,  the  consideration 
may  be  recovered  back  :  Albert  v.  Savings  Bank  of  Baltimore,  1  Md.  Ch. 
407  ;  Abbott  v.  Bait.  &  R.  Steam  Packet  Co.,  Ibid.  542  ;  Beers  v.  Phoenix 
Glass  Co.,  14  Barb.  358.  Corporations  are  bound  to  follow  strictly  the 
letter  of  the  charter,  and  can  exercise  no  power  unless  granted  to  them 
or  absolutely  necessary  to  carry  out  the  power  so  granted:  Smith  v. 
Morse,  2  Cal.  524 ;  Mechanics'  Savings  Bank  v.  Meriden  Agency  Qo.,  24 


340  smith's  law  of  contracts. 

that  when  the  East  India  Company  granted  a  retiring 
pension  to  a  military  officer  for  services  performed  to 
them  in  the  East  Indies,  but  did  not  grant  it  under  their 
common  seal,  the  grant  did  not  fall  within  the  reason  or 
P^o^ll  principle  of  the  *exception,  but  must  be  gov- 
erned by  the  general  rule  of  law,  that  a  corpo- 
ration cannot  be  sued  upon  a  contract,  unless  under  seal. 
It  is,  indeed,  obvious  that  the  grant  of  this  pension 
could  have  no  connexion  whatever  with  the  condition 
or  powers  of  the  company  as  a  trading  community,  and 
consequently  that  it  is  not  within  the  exception  which 
has  been  established  as  to  contracts  entered  into  by  cor- 
porations instituted  for  the  purposes  of  trade  in  matters 
relating  to  their  trade,  or  within  that  respecting  matters 
of  daily  occurrence  and  slight  importance,  which  have 

Conn.  159 ;  Berry  v.  Bates,  24  Barb.  199;  Cincinnati  R.  R.  Co.  v.  Clark- 
son,  7  Ind.  595 ;  Morris  R.  R,  Co.  v.  Newark,  2  Stockt.  352 ;  Smith  v. 
Eureka  Flour  Mills,  6  Cal.  1  ;  Strauss  v.  Eagle  Ins.  Co.,  5  Ohio  (N.  S.) 
59  ;  Aurora  v.  West,  9  Ind.  74  ;  Madison  Plank  Road  Co.  v.  Watertown 
Co.,  5  Wis.  173  ;  Downing  v.  Mount  Washington  Co.,  40  N.  H.  230; 
Parish  v.  Wheeler,  22  N.  Y.  494  ;  Rock  River  Bank  v.  Sherwood,  10 
Wis.  230.  The  express  powers  of  a  corporation  must  be  exercised  in  the 
manner  pointed  out  by  the  statute,  but  the  powers  merely  incident 
thereto  may  be  exercised  by  its  officers  or  agents  :  Smith  v.  Eureka  Flour 
Mills,  6  Cal  1 ;  Southern  Ins.  Co.  v.  Lanier,  5  Fa.  110  ;  Holland  v.  San 
Francisco,  7  Cal.  361  ;  Coe  v.  Columbia  R.  R.  Co.,  10  Ohio  iN.  S.)  372 ; 
Merrick  v.  Burlington  Co.,  11  Iowa  74.  It  is  well  settled  that  a  corpo- 
ration may  without  special  authority  make  a  note  or  draft  or  accept  a 
draft  for  a  debt  contracted  in  its  legitimate  business  :  Partridge  v.  Bad- 
ger, 25  Barb.  146  ;  Hamilton  v.  Newcastle  R.  R.  Co.,  9  Ind.  359  ;  Lucas 
V.  Pitney,  3  Dutch.  221 ;  Frye  v.  Tucker,  24  111.  180 ;  Rockwell  v.  Elk- 
horn  Bank,  13  Wis.  653  ;  Goodrich  v.  Reynolds,  31  111.  490.  The  bur- 
den of  proof  is  upon  parties  impeaching  the  acts  of  corporations  to  show 
that  such  acts  are  not  within  its  corporate  powers :  Chautauque  Bank  v. 
Risley,  19  N.  Y.  369.  A  corporation  chartei-ed  in  one  State  may  make 
aijd  enforce  in  another  State  contracts  allowed  by  its  charter,  and  not  in 
violation  of  the  public  policy  or  laws  of  the  latter  State :  Bard  v.  Poole, 
2  Kern.  495  :  Wright  v.  Bundy,  1 1  Ind.  398.  But  see  Merrick  v.  Brain- 
ard,  38  Barb.  574. 


I 


i 


r 


PARTIES    TO   CONTRACTS.  341 

been  alluded  to.  And  where  the  Governor  and  Com- 
pany of  Coppers  (:^;)  entered  into  a  parol  contract  with  \ 
a  person  to  supply  him  with  a  large  quantity  of  iron 
barsj  it  was  held,  that  as  there  was  no  evidence  that  the 
contract  proved  was  in  any  way  auxiliary  to  the  trade 
in  copper,  it  must  be  held  not  a  contract  entered  into 
for  the  purpose  of  carrying  on  the  trading  object  for 
which  the  plaintiffs  were  incorporated,  and  did  not  bind 
them;  and  consequently,  as  there  was  no  consideration 
for  the  defendant's  promise,  that  he  was  not  bound  to 
perform  it.  In  like  manner,  where  the  London  Dock 
Company,  a  corporation  constituted  for  the  purpose  of 
carrying  on  a  particular  trade,  entered  into  a  contract 
for  the  cleansing  and  removing  the  filth  and  dirt  accu- 
mulating *in  their  docks  and  basins;  the  Court  ^:]■.oA<rf-^ 
held  that  such  a  contract  ought  to  have  been 
under  the  corporation  seal,  as  it  was  not  a  contract  of  a 
mercantile  nature;  nor  was  it  with  a  customer  of  the 
Conipany,  nor  was  it  of  a-  character  which  created  an 
impossibility  that  it  should  be  under  seal.(,y)  But 
where  a  trading  company  is  created  by  charter,  while 
acting  within  the  scope  of  the  charter,  it  may  enter  into 
the  commercial  contracts  usual  in  the  trade  which  the 
company  is  to  carry  on,  in  the  usual  manner.  (^)  Some 
acts  of  trifling  importance  which  every  corporation  may 
do  without  deed,  have  been  already  mentioned.^ 

[x]  The  Governor  and  Company  of  Copper  Miners  of  England  v.  Fox, 
16  Q.  B.  (71  E.  C.  L.  R.)  229 ;  20  L.  J.  (Q.  B.)  174. 

{?/)  London  Dock  Company  v.  Sinnott,  27  L.  J.  (Q.  B.)  129;  8  E.  &  B. 
(92  E.  C.  L.  R.)  347. 

(z)  Copper  Miner's  Co.  v.  Fox,  si,pra. 

^  The  excepted  cases  referred  to  in  the  decision  in  The  East  London 
Waterworks  Co.  v.  Bailey,  were,  1,  where  the  contract  is  executed  ;  2, 
where  the  acts  done  are  of  daily  necessity,  and  too  insignificant  for  the 
trouble  of  the  seal ;  3,  where  the  corporation  has  a  head,  as  a  maj'^or  or 


342  smith's  law  of  contracts. 

There  is  an  important  class  of  parties  to  contracts, 
most  of  which  at  the  present  day  are  of  the  nature  of 


a  dean,  who  may  ^\ve  commands;  4,  where  the  act  should  from  neces- 
sity be  done  immediately  ;  and  5,  where  it  is  essential  to  a  moneyed  cor- 
poration, like  the  Bank  of  England,  that  it  should  have  the  power  of 
issuing  bills  and  notes.  But  the  distinction  between  executed  and  execu- 
tory contracts,  which  was  the  foundation  of  the  first  of  these  exceptions, 
was  directly  overruled  in  Church  v.  The  Imperial  Gas  Co.,  6  Ad.  &  Ell. 
(33  E.  C.  L.  R.)  846.  That  case,  which  decided  that  a  corporation 
might  maintain  assumpsit  for  breach  of  an  unsealed  contract  to  accept 
gas  from  year  to  year  at  so  much  per  annum,  was  rested  on  the  second 
and  fifth  of  the  above  exceptions,  the  contract  being  one  of  daily  occur- 
rence, and  almost  essential  ("  convenience  amounting  almost  to  neces- 
sity"), for  the  purpose  of  the  corporation  ;  and  all  the  recent  cases  in 
England  have  been  decided  upon  the  same  grounds  :  Beverly  v.  The 
Lincoln's  Inn  Gas  Light  and  Coke  Co.,  6  Ad.  &  Ell.  (33  E.  C.  L.  R.) 
829;  Paine  I).  Strand  Union,  8  Q.  B.  (55  E.  C.  L.  R.)  326;  Mayor  of 
Ludlow  V.  Charlton,  6  M.  &  Wels.  824  ;  Lamprell  v.  The  Billericay 
Union,  3  Exch.  306  ;  Diggle  v.  London  and  Blackwall  Railway  Co.,  5 
Ibid.  442  ;  Finlay  v.  Bristol  and  Exeter  Railway  Co.,  9  Eng  Law  &  Eq. 
R.  483. 

On  this  side  of  the  Atlantic,  however,  a  much  more  relaxed  rule  pre- 
vails, and  it  has  long  been  settled  that  there  is  no  distinction  between 
the  contracts  of  a  corporation  and  a  natural  person,  whether  they  are 
express  or  implied,  either  from  acceptance  of  an  executed  consideration 
or  from  the  ratification  of  acts  done  on  its  behalf,  by  its  members  or 
others:  Bank  U.  S.  v.  Dandridge,  12  Wheat.  64;  Proprietors  v.  Gordon, 
1  Pick.  297  ;  Ross  v.  City  of  Madison,  1  Smith  98  ;  Gasset  v.  Andover, 
21  Verm.  102 ;  and  see  many  other  cases  collected  in  Angell  and  Ames 
on  Corporations  211,  212;  2  Kent's  Com.  290  (whose  statement  of 
the  law  is  referred  to  by  Patteson,  J.,  in  Beverly  v.  Gas  Co.,  supra), 
and  the  note  to  Mayor  v.  Charlton,  6  M.  &  Wels.  824,  Am.  ed. — r. 

The  acts  of  a  corporation,  evidenced,  by  a  vote,  written  or  unwritten, 
are  as  completely  binding  upon  it.  and  as  full  authority  to  its  agents,  as 
the  most  solemn  acts  done  under  the  corporate  seal ;  and  promises  and 
engagements  may  as  well  be  implied  from  its  acts  and  the  acts  of  its 
agents  as  if  it  were  an  individual:  Elysville  Manufacturing  Co.  v 
Okisko  Co.,  1  Md.  Cli.  392;  Conroi?.  The  Port  Henry  Iron  Co.,  12  Barb 
27  ;  Ross  v.  Madison,  1  Cart.  281.  Promises  are  implied  against  corpo 
rations  in  the  same  cases  as  against  natural  persons  :  Antonio  v.  Lewis 
9  Tex.  69.  The  appointment  of  an  agent  may  be  implied  :  Planters 
Bank  v.  Bivingsville  Cotton  Co.,  10  Rich.  (Law)  95 ;  Alabama  R.  R.  Co 
V.  Kidd,  29  Ala.  221  ;  Hamilton  v.  Newcastle  R.  R.  Co.,  9  Ind.  359 


PARTIES    TO   CONTRACTS.  342 

trading  corporations,  whose  agreements  must,  in  order 
to  bind  them  as  a  body,  be  entered  into  in  a  manner 
peculiar  to  themselves.  These  are  public  or  joint  stock 
companies.  Nearly  all  of  these  are  of  recent  origin, 
most  of  them  very  recent.  Some  of  these  companies 
are  incorporated,  and  others  not,  and  some  important 
attributes  exist  peculiar  to  different  stages  of  their 
growth,  from  a  mere  party  of  individuals  combining  to 
promote  the  formation  of  a  company,  until  they  have 
achieved  their  object  by  effecting  its  incorporation.  All 
these  companies  are  created  for  some  definite  r^o^on 
and  ^prescribed  object,  and  have  already  been 
slightly  mentioned  in  treating  of  the  power  of  corpora- 
tions to  contract. 

Previously  to  the  passing  of  the  statutes  hereafter 
mentioned,  so  great  a  number  of  joint  stock  companies 
had  been  established,  and  so  many  more  were  projected, 
each  striving  to  attain  its  object  by  means  of  its  own, 
none  having  any  regard  to  the  provisions  of  the  law  in 
analogous  cases,  and  many  violating  them,  that  the 
greatest  confusion  and  uncertainty  were  introduced  into 
their  transactions,  and  lamentable  frauds  and  oppres- 
sions were  committed.  Several  Acts  of  Parliament 
were  passed  remedying  some  of  these  evils,  but  being 
found  insufficient,  the  Legislature  passed  some  general 
enactments,  of  which  the  most  important  for  the  present 
purposes  are,  the  Act  for  the  Registration,  Incorpora- 

Buckley  v.  Briggs,  30  Mo.  452 ;  Brown  v.  Donnell,  49  Me.  421  ;  Allen 
V.  Citizrens'  Co.,  22  C'al.  28.  The  vote  of  the  directors  of  a  bank  to  accept 
one  security  in  the  place  of  another  may  be  proved  by  parol,  when  no 
record  is  made  of  it:  Ryan  v.  Dunlap,  17  111.  40;  Southern  Hotel  Co. 
V.  Newman,  30  Mo.  118.  As  against  the  minority,  a.  majority  of  the 
stockholders  or  board  of  directors  of  a  corporation  cannot  legally  devi- 
ate from  the  undertaking  which  was  originally  contemplated  between 
the  parties:  Kean  v,  Johnson,  1  Stockt.  4U1. 


343  smith's  law  of  contracts. 

tion  and  Regulation  of  Joint  Stock  Companies,  7  &  8 
Vict.  c.  110,  which  came  into  operation  on  the  1st  of 
November  1844 ;  the  Companies  Clauses  Consolidation 
Act,  1845,  8  Vict.  c.  16 ;  the  Lands  Clauses  Consolida- 
tion Act,  1845,  8  Vict.  c.  18 ;  and  the  Railways  Clauses 
Consolidation  Act,  1845,  8  Vict.  c.  20.  The  statute 
7  &  8  Vict.  c.  110,  was  indeed  repealed  by  19  &  20 
Vict.  c.  47;  but  as  to  insurance  companies  registered 
under  it,  and  as  to  new  companies  for  insurance,  it  was 
revived  by  20  &  21  Vict.  c.  80.  The  statute  19  &  20 
r*S44-'I  ^i^t-  c-  47,  now  repealed,  applied  to  companies 
the  ^principle  of  limited  liability.  Existing 
companies  might  come  under  its  operation,  and  joint 
stock  banks  established  since  May  5th  1844,  were  sub- 
jected to  it  by  20  &  21  Vict.  c.  49.  There  was  also  a 
statute  regulating  joint  stock  banking  companies,  7  Geo. 
4,  c.  46,  by  which,  and  by  7  &  8  Vict.  c.  113,  that  im- 
portant class  of  public  companies  was  governed.  Finally, 
there  is  the  "  Companieg  Act,  1862,"  25  &  26  Vict.  c. 
89,  which  has  repealed  most  of  the  former  Acts,  and 
has  established  a  system  which  varies .  much  from  the 
ordinary  rules  of  law,  and  which  can  be  learnt  only  by 
a  careful  study  of  the  statute  itself,  and  of  the  decisions 
of  the  Courts  upon  the  questions  which  have  occurred 
in  applying  it  to  practice.  This  Act  is  amended  by  the 
"Companies  Act,  1867,"  30  &  31  Vict.  c.  131. 

It  will  be  necessary  to  advert  to  some  extent  to  the 
principles  of  the  decisions  pronounced  before  the  "  Com- 
panies Act,  1862,"  for  the  sake  of  explaining  the  law 
applicable  to  such  companies  as  do  not  come  within  its 
enactments,  though  it  is  evident  that  for  many  compa- 
nies established  before  the  passing  of  that  Act,  the  law 
is  different  from  that  by  which  companies  since  estab- 
lished are  regulated. 


PARTIES    TO    CONTRACTS.  344 

"  A  joint  stock  company  is  a  partnership,  consisting 
for  the  most  part  of  a  very  large  number  of  members, 
whose  rights  and  liabilities  would  be  precisely  the  same 
as  those  of  any  other  partners,  *did  not  their 
multitude  oblige  them  to  adopt  certain  peculiar  ■-  -^ 
regulations  for  the  government  of  the  concern,  which 
are  ordinarily  contained  in  an  instrument  called  a  deed 
of  settlement.  Such  is  a  joint  stock  company,  the  con- 
duct of  whose  affairs  has  not  been  affected  by  the 
general  enactments,  which  have  been  mentioned.  Such 
bodies  still  exist,  but  frequently  the  impossibility  or 
great  inconvenience  of  carrying  on  their  business  upon 
such  a  footing  has  induced  them  to  add  to  the  deed  of 
settlement  an  Act  of  Parliament  passed  expressly  for 
their  own  purposes."  («) 

It  is  common,  as  you  are  no  doubt  aware,  to  compa- 
nies generally,  that  the  joint  stock  or  capital  is  divided 
into  equal  parts,  called  shares,  the  number  of  which  be- 
longing to  any  member  ascertains  the  amount  which  he 
has  contributed  to  that  stock  or  capital,  and  his  conse- 
quent interest  in  the  undertaking.  The  members  or 
shareholders  delegate  all  the  ordinary  business  of  the 
company  to  certain  of  its  members,  in  whom  they  con- 
fide, and  who  are  usually  called  directors,  but  reserve  to 
themselves  the  right  to  interfere  on  specified  occasions, 
together  with  a  general  control  and  superintendence. 

It  is  also  common  to  companies  generally  that,  in  all 

cases  which  are  not  regulated  by  the  deed  of  settlement 

and  the  private,  or,  as  it  is  called,  special  *Act 

1  or  by  one  or  other  of  the  general  statutes  we    '-         -' 

!  have  mentioned,  the  common  law  prevails,  and  the  rules 

apply  which  would  apply  to  an  ordinary  partnership ;  {b) 

[a]  Smith's  Mercantile  Law,  6th  ed.,  by  Dowdeswell,  p.  59. 
\b)  Holmes  v.  Iliggins,  1  B.  &  C.  (8  E.  C.  L.  R.)  74;  Wilson  v.  Cur- 
zon,  ]5M.  &  W.  532. 


346  smith's  law  of  contracts. 

and,  on  the  other  hand,  the  parties,  having  exchanged 
their  mutual  rights  at  common  law  for  those  stipulated 
for  in  their  deed,  are  bound  by  the  latter,  and  cannot, 
as  a  general  rule,  act  otherwise  than  in  the  stipulated 
manner.  These  results  have  been  made  very  clear  by 
the  judgment  of  the  Court  of  Exchequer,  in  Bosanquet 
V.  Shortridge,  (c)  in  which  case  the  deed  of  settlement 
had  provided  that  no  person  should  be  registered  as  a 
shareholder  without  the  consent  of  the  board  of  direc- 
tors ;  and  it  was  endeavored  to  be  shown  that  the  de- 
fendant had  ceased  to  be  a  shareholder,  having  actually 
sold  his  shares  to  another,  although  the  transfer  was 
not  with  the  consent  of  the  board  of  directors.  "  It  is 
necessary,"  said  the  Court,  "that  Courts  of  Justice 
should  act  on  general  rules,  without  regard  to  the  hard- 
ship which  in  particular  cases  may  result  from  their 
application.  This  is  the  case  of  a  joint  stock  company 
regulated  by  deed.  All  persons  executing  the  deed 
are  bound  by  whatever  is  done  in  pursuance  of  its  pro- 
visions, but  they  are  bound  no  further.  The  original 
body  of  shareholders  agreed  to  trade  in  partnership,  and 
P^471  '"'^^^y  further  agreed  that,  by  a  certain  stipu- 
lated mode,  any  one  of  this  body  might  transfer 
his  share  to  another,  to  be  substituted  in  his  place. 
But  unless  the  steps  pointed  out  by  the  deed  for  making 
such  transfer  have  been  duly  taken,  the  original  body 
of  shareholders  remain  partners,  according  to  the  terms 
of  their  deed  of  settlement.  If,  indeed,  a  case  could 
be  conceived  where  all  the  shareholders,  at  a  particular 
time,  had  assented  to  a  mode  of  transfer  different  from 
that  stipulated  for  in  the  deed,  they  might  be  bound  by 
what  they  had  so  agreed  to.     But  such  a  state  of  things 

(c)  4  Exch.  699  ;  22  L.  J.  (Ch.)  49  ;  Kirk  «.  Bell,  16  Q.  B.  (71  E.  C.  L. 
R.)  290  ;  Watson  v.  Eales,  26  L.  J,  (Ch.)  361. 


PARTIES    TO    CONTRACTS.  347 

could  hardly  happen  to  a  joint  stock  company  like  that 
in  which  the  defendant  was  a  member ;  and  certainly 
no  such  universal  consent  can  be  taken  to  have  existed 
here."     The  defendant  was  held  to  be  still  a  member. 

The  above  case  of  Bosanquet  v.  Shortridge  illustrates 
a  great  inconvenience  felt  by  a  joint  stock  company 
established  by  deed,  viz.,  that  no  member  can  transfer 
his  share  without  the  consent  of  the  rest ;  for  such  a 
company  being,  in  most  particulars,  an  ordinary  part- 
nership, the  consent  of  each  partner  is  necessary  to  the 
introduction  of  a  new  one;  although  it  has  been  consid- 
ered, that  where  the  nature  of  the  company  was  such 
that  the  members  could  not  have  intended  that  there 
should  be  no  change  in  their  body  without  their  consent, 
such  a  consent  was  not  necessary,  (c^)  Thus,  great 
*doubts  and  difficulties  and  disputes  have  una-  r:5:Q4^c-| 
voidably  arisen  in  endeavoring  to  act  without 
such  consent.  And  in  all  ordinary  cases  the  members 
have  no  peculiar  rights  or  liabilities,  but,  as  in  ordinary 
partnership,  are  parties  to  all  the  contracts  of  the  com- 
pany, entitled  to  the  benefit  of  them,  and  responsible 
for  their  non-performance.  One  of  the  objects,  how- 
ever, of  the  general  enactments  referred  to,(e)  or  at  all 
events  of  most  of  them,  is  to  prescribe  the  modes  in 
which,  under  the  operation  of  those  statutes,  such  shares 
may  be  granted  by  the  company,  and  transferred  from 
holder  to  holder;  and  various  modes  for  attaining  these 
purposes  are  prescribed  in  the  particular  Acts  regulating 
many  of  the  companies  which  were  established  before 
those  enactments. 

It  may  be  worth  while  to  mention  here  that  shares 

{(1)  Fox  V.  Clifton,  9  King.  (23  E.  C.  L.  R.)  119;  Waterford  and  Dub- 
lin Ry.  Co.  V.  Pidcock,  22  L.  J.  (Ex.)  146  ;  8  Ex.  279. 
(e)  Ante,  p.  343. 


348  smith's  law  of  contracts. 

in  a  joint  stock  company,  although  it  be  seised  of  land 
and  possessed  of  goods  as  well  as  of  the  property  in 
which  it  commonly  deals,  do  not  fall  within  the  4th  sec- 
tion of  the  Statute  of  Frauds  (/)  as  an  interest  in  land, 
or  within  the  17th  section (/)  as  goods,  wares,  or  mer- 
chandise 5  but,  in  the  absence  of  any  enactment  making 
them  the  one  or  the  other,  are  personal  property  and 
mere  choses  in  action,  and  consequently  are  transferable 
by  parol.  (^) 

P^o^q-i  *If  the  approbation  of  the  directors  be  re- 
quired as  a  preliminary  to  the  transfer,  it  must 
of  course  be  procured,  (/^)  and  that  by  the  vendor,  who 
must  do  everything  necessary  to  vest  the  property  in 
the  purchaser,  (2)  although  it  is  generally  for  the  pur- 
chaser to  prepare  and  tender  the  conveyance.  (^)  And 
therefore,  when  the  shares  are  by  the  provisions  of  an 
Act  of  Parliament  transferable  by  deed  only,  the  pur- 
chaser must  tender  a  deed  to  the  seller  for  execution 
before  he  can  sue  for  not  transferring  them;  and  a  sealed 
instrument  of  transfer,  having  the  name  of  the  vendee 
in  blank  at  the  time  when  it  is  sealed  and  delivered,  is 
invalid,  not  being  a  legal  deed.(/)  ; 

When  a  person  has  become  a  member  of  a  joint  stock 
company,  he  is,  in  all  ordinary  cases,  unless  exempted 
by  the  private  or  general  statute,  entitled  to  the  benefits 
of  all  its  contracts,  and  responsible  for  the  engagements 
of  the  company  made  by  the  agents  of  the  concern  in 

(/)  Humble  v.  Mitchell,  11  A.  &  E.  (39  E.  C.  L.  R.)  205  ;  Tempest  c. 
Kilner,  3  C.  B.  (54  E.  C.  L.  R.)  249-;  Bowlby  v.  Bell,  Ibid.  284  ;  ante, 
p.  129. 

{g)  Hibblewhite  v.  M'Morine,  6  M.  &  W.  214. 

{h)  Bosanquet  v.  Shortridge,  20  L.  J.  (Ex.)  57  ;  4  Exch.  699,  s.  c. 

(i)  Ibid.  ;  Wilkinson  v.  Llojd,  7  Q.  B.  (53  E.  C.  L.  R.)  27. 

{k)  Stephens  v.  De  Medina,  4  Q.  B.  (45  E.  C.  L.  R.)  422. 

{I)  Hibblewhite  v.  M'Morine,  6  M.  &  W.  200. 


PARTIES    TO   CONTRACTS.  349 

order  to  carry  out  its  purposes,  (m)  But  in  order  to 
cliarge  the  company  or  any  member  upon  a  contract,  it 
must  be  proved  to  have  been  made  by  persons  having 
authority  from  all  the  shareholders  to  bind  r-^:  c;a-| 
*them  by  such  a  contract;  and  this  may  be  done 
by  proving  that  it  was  sanctioned  by  the  persons  author- 
ized by  the  deed  of  the  company  to  conduct  its  affairs.  (/?) 
But  the  claimant  is  not  confined  to  the  deed  for  proof 
of  authority.  He  may  show  in  any  way  that  the  whole 
of  the  shareholders  have  directly  or  indirectly  given 
authority  to  those  making  the  contract  to  bind  them; 
but  to  show  merely  that  some  of  the  directors  have 
ordered  or  approved  of  the  contract  is  not  sufficient 
without  also  showing,  that,  by  the  deed  or  otherwise, 
they  were  authorized  so  to  do.  Therefore,  where  the 
deed  appointed  eleven  directors,  and  declared  five  to  be 
a  quorum,  the  company  was  held  not  bound  by  a  con- 
tract made  at  a  board  where  three  only  were  present: 
and  this  although  the  company  was  completely  regis- 
tered under  7  &  8  Vict.  c.  110. (n)  And,  on  the  other 
hand,  where  a  manufacturing  company  had  appointed  a 
manager  to  superintend  and  transact  its  manufjicturing 
business,  but  the  general  business  was  to  be  transacted 
by  a  board  of  directors,  who  had  jDOwer  to  aj^point 
officers  and  delegate  their  authority,  and  goods  for  the 
manufacture  had  been  ordered  by  the  manager,  the 
chairman,  the  deputy-chairman,  and  the  secretary,  and 
were  used  for  the  company's  purposes;  the  p::o.-i-| 
Court  *of  Common  Pleas  considered,  that, 
although,  with  the  exception  of  the  manager,  none  of 
these  officers  had  authority  to  give  such   orders,  and 

(m)  Harvey  v.  Kay,  9  B.  &  C.  (17  E.  C.  L.  R.)  356.      . 

(n)  Ridley  v.  Plymouth  Baking  Co.,  17  L.  J.  (Ex.)  252;  2  Ex.  711,  s. 
c.  See  Ilowbeach  Coal  Co.  v.  'league,  29  L.  J.  (Ex.)  137;  D'Arcy  i'. 
Tamar,  &c.,  Ry.  Co.,  L.  R.  2  Ex.  158 ;  3G  L.  J.  (Ex.)  37. 


doi  SMITH  S    LAW    OF    CONTRACTS. 

although  the  directors  did  not  expressly  adopt  them, 
yet,  as  they  knew  the  goods  so  ordered  had  been  re- 
ceived upon  the  premises  of  the  company,  and  used 
for  the  purposes  of  its  trade,  the  company  was  liable,  (o) 
It  will  probably  appear  quite  clear  from  what  has 
been  said  before,  and  if  not,  it  is  sufficiently  so  from  the 
very  nature  of  the  thing,  that  the  contracts  to  which  a 
member  of  a  joint  stock  company  becomes  liable,  because 
they  are  made  by  the  agents  of  the  company  or  certain 
of  its  members,  must  be  contracts  either  expressly 
authorized  by  him,  or  appropriate,  in  order  to  carry  out 
the  purposes  for  which  the  company  was  formed.  Thus, 
in  the  celebrated  case  of  Dickenson  v.  Yal])j,{p)  wliich 
was  an  action  on  a  bill  of  exchange,  purporting  to  be 
drawn  and  accepted  by  a  mining  company,  wherein  the 
plaintiff,  an  indorsee  for  value,  sought  to  charge  the  de- 
fendant as  a  member  of  that  company,  the  Court  of 
King's  Bench  held  that,  assuming  the  defendant  to  be 
a  member  of  that  company,  it  was  incumbent  on  the 
plaintiff  to  prove  that  the  directors  of  the  company  had 
authority  to  bind  the  other  members,  by  drawing  and 
r^coro"!  accepting  *bills  of  exchange';  and  that,  the 
plaintiff  not  having  produced  the  deed  of  co- 
partnership, nor  given  any  evidence  to  show  that  it  was 
necessary  for  the  purpose  of  carrying  on  the  business  of 
a  mining  company,  or  that  it  was  usual  for  them  to 
draw  or  accept  bills  of  exchange,  there  was  no  evidence 
of  such  authority  to  draw  or  accept  them.  "  There  was 
not  any  evidence,"  said  Parke,  J.  (afterwards  Lord 
Wensleydale),  ''to  prove  an  authority  of  the  parties  in 
this  concern  to  draw  such  a  bill  of  exchange  as  this.     I 

(o)  Smith  V.  Hull  Glass  Co.,  21  L.  J.  (C.  P.)  106;  11  C.  B.  (73  E.  C. 
L.  R.)  897. 

(p)  10  B.  &  C.  (21  E.  C.  L.  R.)  128.  ' 


PARTIES    TO   CONTRACTS.  doi 

very  much  doubt  Avhether  there  is  any  authority  in 
mining  companies,  arising  by  implication  from  the  nature 
of  their  dealings,  to  draw  or  accept  bills  of  exchange ; 
and  it  is  to  be  observed,  that  there  was  no  proof  of  any 
usage  to  do  this  in  such  companies.  The  argument 
would  go  to  this,  that  all  persons  who  deal  in  the  pro- 
duce of  the  land,  which  they  jointly  occupy,  because 
they  might  sell  that  produce  at  a  distance,  would  have 
an  implied  power  given  to  each  other  to  draw  bills  of 
exchange  for  the  purpose  of  receiving  payment  for  it ; 
if  the  argument  was  valid  it  would  show  that  farmers 
acting  in  partnership,  as  well  as  miners,  would  have,  as 
incidental  to  the  relation  of  partners,  an  authority  to 
draw  bills  of  exchange  upon  the  persons  to  whom  the 
produce  of  the  land  was  sold ;  there  is,  however,  no 
necessity  to  decide  that  point,  because  there  is  no 
ground,  at  all  events,  to  say  that  mining  partners  have 
an  implied  authority  from  one  another,  arising  from  the 
nature  of  *their  business,  to  draw  such  a  bill  of 
exchange  as  this,  for,  upon  the  face  of  it,  this  ^  -^ 
is  a  bill  drawn  by  the  company  upon  themselves,  and 
though  it  is  in  form  treated  as  a  bill  of  exchange,  it  is 
in  substance  only  a  promissory  note ;  and  the  effect  of 
saying  that  one  member  of  a  company  like  this  can 
draw  such  bills  or  notes,  would  be,  that  each  of  the 
partners  in  the  concern  would  have  the  power  of  pledg- 
ino;  the  others."  Still  more  Q:eneral  was  the  language 
of  Tindal,  C.  J.,  in  delivering  the  judgment  of  the  Court 
of  Common  Pleas  in  the  case  of  Bramah  v.  Roberts.  (§') 
In  that  case  a  bill  had  been  drawn  by  one  of  the  direc- 
tors of  a  gas  company  on  himself  and  the  other  directors, 
which  was  accepted  by  the  chairman  for.  himself  and 
the  other  directors.     This  acceptance  was  held  not  to 

(2)  3  Bing.  N  C.  (32  E.  C.  L.  R.)  963. 


353  smith's  law  of  contracts. 

bind  them,  in  the  absence  of  evidence  of  authority  given 
to  any  one  of  the  directors  to  bind  the  other  directors 
or  the  company  at  large  by  the  acceptance  of  bills  of 
exchange.  "  The  address  of  a  bill,"  said  the  Chief  Jus- 
tice, "  to  the  directors  of  a  metropolitan  company,  and 
the  frame  of  acceptance  by  the  chairman  of  such  direc- 
tors, for  himself  and  the  other  directors,  can  only  be 
referable,  unless  some  explanation  is  given,  to  a  com- 
pany of  the  description  well  known  in  all  the  courts  of 
law  and  equity  in  Westminster  Hall  as  joint  stock  com- 
panies, and  not  to  the  ordinary  partnerships  in  trade. 
r^oKA-\  *It  was  proved  upon  the  trial  of  the  cause,  that 
Clare,  the  drawer  of  the  bill,  from  whom  the 
plaintiffs  derived  title,  and  upon  whose  indorsement 
they  rely,  was  the  same  William  Clare  who  was  one  of 
the  acceptors  and  one  of  the  defendants  in  his  capacity 
of  acceptor ;  so  that  the  bill  is  drawn  by  one  of  the 
directors  upon  himself  and  the  other  directors,  payable 
to  his  own  order,  and  accepted  by  another  director  for 
himself  and  the  rest.  But  the  right  of  one  director  to 
draw  a  bill  upon  the  rest,  and  still  further,  the  power 
of  one  director  to  accept  a  bill  for  himself  and  the 
others,  so  as  to  make  those  others  liable,  according  to 
the  case  of  Dickenson  v.  Valpy,(r)  in  the  authority  of 
which  case  we  entirely  concur,  is  not  a  right  or  power 
implied  by  law,  like  that  which  belongs  to  one  member 
of  an  ordinary  partnership  in  trade  with  respect  to  bills 
drawn  and  accepted  for  the  purposes  of  the  trade.  It 
must  depend  upon  the  powers  given  by  the  charter  or 
deed  or  agreement  under  which  the  company  is  estab- 
lished and  constituted,  or  some  other  agreement  between 
the  parties,  whether  a  bill  so  drawn  and  accepted  shall 
or  shall  not  have  that  legal  effect.     But  upon  the  trial 

{)■)  10  B.  &  C.  (21  E.  C.  L.  R.)  128. 


PARTIES    TO    CONTRACTS.  354 

of  this  cause,  no  evidence  whatever  was  given  by  the 
plaintiffs  of  the  constitution  of  this  company,  nor  of  any 
authority  given,  by  deed,  or  otherwise  to  any  one  of 
the  directors  to  bind  the  other  directors,  or  to  bind  the 
company  at  large,  by  his  acceptance  of  bills  of  p^orr-i 
*exchange ;  and  in  the  absence  of  such  evi-  ^  J 
dence,  we  are  of  opinion  that  no  such  authority  is  to  be 
implied  by  law,  or  can  be  held  to  exist." 

With  regard  to  the  borrowing  of  money,  unless  it  be 
part  of  the  ordinary  business  of  the  company,  as  it 
would  be  of  a  banking  company,  (s)  or  express  powers 
be  given  them  by  the  deed,  the  directors  have  no  autho- 
rity to  pledge  the  credit  of  the  shareholders  by  borrow- 
ing money,  even  though  it  be  necessary  to  enable  them 
to  carry  on  the  affairs  of  the  company,  [t)  It  has  since 
been  held,  that  even  a  clause  in  the  deed  of  settlement, 
under  which  a  mining  company  was  carried  on,  which 
provided  that  the  affairs  and  business  of  the  company 
should  be  under  the  sole  and  entire  control  of  the 
directors,  of  whom  there  should  not  be  less  than  five  or 
more  than  nine,  and  that  three  of  them  should  at  all 
meetings  of  directors,  and  for  all  purposes,  be  competent 
to  act,  did  not  authorize  them  to  borrow  money  for  the 
necessary  purposes  of  the  mines.  («i)  As  to  dealing  on 
credit,  the  question  whether  the  company  may  be  made 
liable  by  its  agents  so  dealing,  depends,  like  the  others 
we  have  been  considering,  upon  the  authority  given  to 
those  agents;  and  this  authority,  as  in  other  cases,  may 
be  proved  by  showing  it  to  have  been  actually  p-corp-i 
given,  or  that  *concerns  of  the  nature  in  ques- 
tion are  ordinarily  so  carried  on.     "  The  question,"  said 

(s)  Bank  of  Australasia  v.  Breillat,  6  Moore  P.  C.  C.  152. 

{t)  Ricketts  v.  Bennett,  4  C.  B.  (56  E.  C.  L.  R.)  686. 

{u)  Burmester  v.  Norris,  21  L.  J.  (Ex.)  43 ;  6  Ex.  796,  s.  c. 


dob  SMITH  S   LAW   OF    CONTRACTS. 

Lord  Abinger,  "  which  was  decided  in  Dickenson  v. 
Valpy,  that  a  mining  company  is  not  necessarily  formed 
with  a  power  to  pledge  the  credit  of  indiA'idual  members 
by  the  drawing  of  bills,  is  very  different  from  the  ques- 
tion whether  it  is  not  formed  with  power  to  bind  them 
by  dealing  on  credit;  whether  the  directors  have  such  a 
power,  must  depend  on  the  general  nature  of  the  con- 
cern ;  it  is  a  matter  for  the  jury  to  decide  upon,  unless 
the  party  gives  evidence  to  show  that  their  authority 
was  expressly  limited,  and  if  it  had  been  left  to  the  jury 
in  this  case,  I  think  they  would  not  have  had  much  dif- 
ficulty in  saying  that  it  is  in  the  general  nature  of  min- 
ing concerns  to  deal  on  credit  for  the  purpose  of  carry- 
ing on  their  business."  (2:)  This  distinction  between  bor- 
rowing and  dealing  on  credit  has  been  upheld  by  the 
Court  of  Chancery,  (j^) 

It  is  impossible  within  the  limits  of  this  work  to  enter 
even  upon  the  subjects  comprised  within  the  Railway 
Clauses  Act,  the  Lands  Clauses  Act,  the  Companies 
Clauses  Consolidation  Act,  or  the  Acts  regulating  Joint 
Stock  Banking  Companies.  All  that  can  be  done  con- 
sistently with  the  present  object  in  addition  to  what  has 
been  said,  is  to  give  a  general  view  of  the  Law  of  Con- 
p..^qcY-|  tracts  as  applied  *by  the  general  Act  already 
referred  to,  and  known  as  the  Companies  Act, 
1862. 

By  virtue  of  this  Act,  the  principal  Act,  as  amended 
by  the  Companies  Act,  1867  (30  &  31  Vict.  c.  131),  any 
number  of  persons  not  less  than  seven  may,  by  using 
the  modes  prescribed  by  that  statute,  form  themselves 
into  an  incorporated  company  so  as  to  obtain  the  advan- 

[x)  Tredwen  v.  Bourne,  6  M.  &  W.  465  ;  Hawken  v.  Bourne,  8  M.  & 
AV.  703. 

[y]  In  re  The  German  Mining  Co.,  22  L.  J.  (Ch.)  926. 


PARTIES    TO    CONTRACTS.  357 

tages  given  them  thereby.  These  modes  are  amongst 
other  things  the  registration,  in  an  office  provided  for 
that  purpose,  of  a  document  called  the  memorandum  of 
association,  which  memorandum  is  to  declare  the  name 
of  the  company,  its  objects,  capital,  number  of  shares 
into  which  its  capital  is  divided,  the  liability  of  its  share- 
holders, whether  limited  or  unlimited,  and  the  part  of 
the  United  Kingdom  in  which  its  registered  office  is  to 
be  established.  The  effect  of  this  memorandum,  when 
registered,  binds  the  company  and  the  shareholders  in 
the  same  manner  as  a  covenant  to  conform  to  all  the 
regulations  of  the  memorandum  would  bind  them.  It  is 
clear,  therefore,  that  the  name  of  the  company  will 
thereafter  be  that  which  is  declared  in  the  memorandum 
of  association  until  altered  in  a  legal  manner,  and*  by  this 
name  only  can  it  contract,  so  that  the  rights  and  liabili- 
ties provided  by  the  statute  shall  attach  to  it  by  the 
contract.  More  precise  regulations  may  also  be  made 
according  to  a  form  provided  by  the  statute  to  accom- 
pany the  memorandum  of  association,  which  are  called 
articles  *of  association.  These  also  bind  the  r:HQKC-| 
shareholders  and  the  company  as  if  they  had 
respectively  covenanted  to  the  same  effect,  and  these, 
or  such  of  them  as  are  chosen  by  the  company,  being 
registered,  and  the  registrar  having  certified  that  the 
company  is  incorporated,  the  shareholders  become  a  body 
corporate  by  the  name  in  the  memorandum  of  associa- 
tion. But  it  must  be  remembered  that  if  twenty  per- 
sons or  more,  after  the  2d  of  November  1862,  carry  on 
in  partnership  any  trade  or  business  having  gain  for  its 
object,  unless  so  registered  or  authorized  by  private  stat- 
ute, or  engaged  in  mining  in  the  Stannaries,  each  of 
them  may  be  sued  for  the  whole  debts  of  the  co-partner- 
ship without  joining  any  other  member. 


358  smith's  law  of  contracts. 

The  objects  for  which  the  company  is  established 
being  thus  defined,  must  be  reasonably  adhered  to  in 
the  transactions  of  the  company.  I  do  not  find  that 
this  rule  has  been  much  illustrated  during  the  existence 
of  this  statute ;  but  it  would  seem  that  cases  illustrating 
the  operation  of  other  statutes  upon  similar  questions 
would  be  applicable  upon  the  present  question.  Thus, 
it  has  been  held  that  a  railway  company  incorporated 
by  Act  of  Parliament  is  bound  to  apply  all  the  funds  of 
the  company  for  the  purposes  directed  and  provided  for 
by  that  Act,  and  for  no  others ;  and  therefore,  where  a 
railway  company  was  incorporated  by  statute  for  the 
purpose  of  making  and  maintaining  a  particular  railway, 
r*ocq-|  and  for  other  purposes  therein  declared,  *and 
they  were  empowered  to  raise  money  for 
making  and  maintaining  that  railway,  which  money  was 
to  be  expended  towards  those  purposes  and  otherwise 
in  carrying  the  Act  into  execution,  and  after  paying 
these  expenses  the  profits  were  to  be  divided  among 
the  proprietors,  the  purposes  mentioned  in  the  statute 
were  held  to  be  confined  to  acts  to  be  done  upon  and 
relating  to  the  railway  to  be  made  by  the  company. 
The  company  covenanted  with  the  plaintiffs,  another 
railway  company,  to  take  a  lease  of  their  railway,  and 
to  pay  the  costs  of  soliciting  Bills  then  pending  in  Par- 
liament, by  which  the  plaintiffs  were  to  be  authorized 
to  make  extensions  of  their  railways.  These  covenants 
Viere  held  to  be  beyond  the  scope  of  their  authority  as 
a  corporation,  and  therefore  illegal  and  void,  however 
beneficial  to  their  railways  the  objects  of  the  covenant 
might  he.(s)     So  in  the  case  of  the   Shrewsbury  and 

(2)  East  Anglian  Ry,  Co.  v.  Eastern  Counties  Ry.  Co.,  21  L.  J.  (C.  P.) 
23  ;  11  C.  B.  (73  E.  C.  L.  R.)  775 ;  South  Yorkshire  Ry.  Co.  and  River 
Pun.  Co.  V.  Great  Northern  Ry.  Co.,  22  L.  J.  (Ex.)  305  ;  9  Ex.  55 ;  s.  c. 


PARTIES   TO   CONTRACTS.  395 

Birmingham  Railway  Company  v.  North  Western  Rail- 
way Company  and  Shropshire  Union  Railway  Com- 
pany, (a)  the  House  of  Lords  decided  that  although, 
prima  facie,  all  corporate  bodies  are  bound  by  contracts 
under  their  *common  seal,  yet  this  prima  facie  ri^opn-i 
power  to  contract  cannot  be  insisted  on  as  to 
matters  where,  from  the  nature  of  the  corporate  body 
or  the  object  of  its  incorporation,  it  is  expressly  or 
impliedly  by  reasonable  inference  prohibited  from  con- 
tracting. 

Before  quitting  this  subject,  however,  I  would  direct 
the  reader's  attention  to  the  remarkable  case  of  Bostock 
V.  North  Staffordshire  Railway  Company,  (^)  which, 
although  the  judges  differed  in  opinion,  is  highly  in- 
structive for  the  learned  and  important  arguments  by 
which  their  several  opinions  were  supported.  This 
case  is  also  especially  remarkable  in  being,  as  I  believe, 
nearly,  if  not  quite,  the  only  instance  in  which  a  fee 
simple  has  been  held  to  pass  without  the  absolute  power 
of  using  the  land  in  any  lawful  manner  which  the  owner 
may  think  fit. 

Having,  therefore,  thus  delineated  the  name  by  which 
a  public  company  incorporated  under  the  Act  of  1862 
may  contract,  and  the  sort  of  contracts  which  it  may 
make,  we  come  to  consider  the  manner  in  which  it  may 
make  them.  That  Act  gave  no  form  of  contracting; 
but  as  companies  registered  under  this  Act  are  incorpo- 

in  Ex.  Ch.,  23  L.  J.  (Ex.)  186;  Macgregor  v.  Deal  and  Dover  Ry.  Co.,  22 
L.  J.  (Q.  B.)  69 ;  18  Q.  B.  (83  E.  C.  L.  R.)  618 ;  Munt  v.  Shrewsbury  & 
Chester  Ry.  Co.,  20  L.  J.  (Ch.)  169  ;  13  Beav.  1. 

(a)  6  H.  L.  C.  113.     See  Copper  Miners"  Co.  v.  Fox,  ante,  p.  341. 

(6)  24  L.  .J.  (Q.  B.)  225 ;  4  E.  &  B.  (82  E.  C.  L.  R.)  798  ;  Bostock  v. 
North  Staffordshire  Ry.  Co.,  25  L.  J.  (Ch.)  325.  See  Astley  <?.  Man- 
chester, Sheffield,  and  Lincolnshire  Ry.  Co.,  27  L.  J.  (Ch.)  299  ;  27  L.J. 
(Ch.)  478. 


360  smith's  law  of  contracts. 

rated  by  sec.  18,  the  modes  by  which  a  corporation  con- 
tracts were  in  general  applicable  to  ihem.{c)  The 
r*^ri  1  po^^^^'^?  however,  of  Companies  registered  under 
*the  Companies  Act,  1862,  as  to  the  manner  of 
contracting  have  been  greatly  enlarged  by  the  Corapa- 
•  nies  Act,  1867  (30  &  31  Vict.  c.  131,  s.  37),  ufider 
which  section  contracts  on  behalf  any  such  Company 
may  be  made  as  follows: — 

"(1).  Any  contract,  which,  if  made  between  private 
persons,  would  be  by  law  required  to  be  in  writing, 
fQ  and  if  made  according  to  English  law  to  be  under 

0  seal,  may  be  made  on  behalf  of  the  Company  in 

■  writing  under  the  common  seal  of  the  Company, 

and  such  contract  may  be  in  the  same  manner 
varied  or  discharged: 
"  (2) .  Any  contract,  which,  if  made  between  private 
persons,  would  be  by  law  required  to  be  in  writing, 
and  signed  by  the  parties  to  be  charged  therewith, 
may  be  made  on  behalf  of  the  Company  in  writing, 
signed  by  any  person  acting  under  the  express  or 
implied  authority  of  the  Company,  and  such  con- 
tract may  in  the  same  manner  be'  varied  or  dis- 
charged : 
"(3).  Any  contract,  which,  if  made  between  private 
persons,  would  by  law  be  valid,  although  made  by 
parol  only,  and  not  reduced  into  writing,  may  be 
made  by  parol  on  behalf  of  the  Company  by  any 
person  acting  under  the  express  or  implied  author- 
ity of  the  Company,  and  such  contract  may  in  the 
same  way  be  varied  or  discharged."     The  section 

r-kom^n    concludes  with  ^declaring  "that  all  contracts 
[362]  ,  .  .  ,       . 

made  according  to  the  provisions  therein  con- 
ic) See  South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3  C.  P.  463,  4 
C.  P.  617  (Ex.  Ch.);  s.  c,  37  L.  S.  (C.  P.)  211,  38  Ibid.  338,  anie,  p.  340. 


PARTIES    TO    CONTRACTS.  362 

tained  shall  be  effectual  in  law,  and  shall  be  binding 
upon  the  Company  and   their   successors   and  all 
other  parties   thereto,    their  heirs,   executors,    or 
administrators  as  the  case  may  be." 
By  s.  55  of  the  principal  Act,  the  company  by  instru- 
ment under  their  common  seal,  may  empower  any  per- 
son as  their  attorney  to   execute  deeds  in  their  behalf 
anywhere  out  of  the  United  Kingdom,  and  any  deed  so 
signed  by  the  attorney  on  behalf  of  the  company  and 
under  his  seal  shall  be  as  binding  as  if  under  the  com- 
pany's seal. 

By  s.  47  of  the  same  Act,  bills  of  exchange  and  pro- 
missory notes  shall  be  deemed  to  have  been  made, 
accepted,  or  indorsed  on  behalf  of  any  company  under 
this  Act,  if  made,  accepted,  or  indorsed,  in  the  name  of 
the  company  by  any  one  acting  under  their  express  or 
implied  authority,  or  if  made,  accepted,  or  indorsed  by 
or  on  behalf  of  the  company  by  any  person  acting  under 
the  authority  of  the  company,  and  will  be  binding  on 
them.  Where  a  promissory  note  was  made  in  this 
form :  "  Three  months  after  date  we  jointly  promise  to 
pay  to  F.  G.  or  order  ,£600  for  value  received  in  stock, 
on  account  of  the  London  and  Birmingham  Iron  and 
Hardware  Company,  Limited.  Payable  at  the  London 
Joint  Stock  Bank,  Princes  Street,  Mansion  House. — 
William  Melrose,  H.  W.  Wood,  John  ^Harris,  pijqpo-i 
Directors;  Edwin  Guest,  Secretary," — the 
Court  considered  that  the  note  was  made  in  the  name 
of  the  company  within  the  similar  provisions  of  19  &  20 
Vict.  c.  47,  s.  43  (now  repealed),  and  was  therefore 
binding  on  the  company,  and  not  on  the  directors  who 
signed   it.  (J)      Still,   it  must  not  be   understood  that 

{d)  Lindus  v.  Melrose,  27  L.  J.  (Ex.)  326  ;  3  H.  &  N.  177.     See  Smith 
V.  Johnson,  Ibid.  363  ;  3  II.  &  N.  222  ;  Penrose  v.  Martin,  28  L.  J.,  (Q. 


363  smith's  law  of  contracts. 

either  by  the  above  47th  sec.  or  elsewhere  by  the  Act 
of  1862,  fs  the  power  of  accepting  bills  of  exchange  or 
issuing  negotiable  instruments  given  to  companies  as  an 
incident  of  their  incorporation  under  that  Act.  The  Act 
leaves  the  power  of  a  company  so  incorporated,  with 
regard  to  negotiable  securities,  to  be  determined  upon 
the  proper  construction  of  the  memorandum  and  articles 
of  association.  There  may,  under  the  Act,  be  compa- 
nies which  communicate  to  their  directors  the  power  to 
bind  the  shareholders  by  negotiable  instruments.  There 
may  be  companies  which  do  not  communicate  any  such 
power.  If  the  power  is  to  be  given  to  the  directors  it 
must  be  given  by  the  memorandum,  and  articles  of  asso- 
ciation, {e) 

r*^fi4-1  ^Preserving  the  forms  thus  required,  a  joint 
stock  company  may  enter  into  any  lawful  con- 
tracts requisite  to  attain  the  objects  for  which  it  was 
established.  Bearing  in  mind  what  has  been  said  of  the 
illegality  of  contracts  ultra  vires  of  the  company,  it  will 
probably  not  be  very  difficult  to  determine  whether  any 
proposed  contract  is  such  as  will  bind  the  company  with 
regard  to  the  objects  declared  in  the  memorandum  and 
articles  of  association.  Upon  such  contracts  the  com- 
pany thus  incorporated  may  sue  and  be  sued  like  any 
other  corporation.  If  the  company,  on  judgment  being 
obtained  against  it,  does  not  pay  or  satisfy  the  judg- 
ment, and  execution  issued  thereon  is  unsatisfied  in 
whole  or  part,  the  company  shall  be  deemed  unable  to 

B.)  28  ;  Alexander  v.  Sizer,  L.  R.  4  Ex.  102;  38  L.  J.  (Ex.)  59  (where 
J.  S.,  the  secretary  of  a  railway  company,  was  held  not  to  be  personally 
liable,  on  a  note  signed  by  him,  "J.  S.,  Secretary") ;  Dutton  v.  Marsh, 
L.  R.  6  Q.  B.  361  (in  which  case  the  directors  were  held  personally 
liable  as  the  makers  of  a  note  to  which  the  company's  seal  was  affixed). 
(e)  Peruvian  Railways  Co.  v.  Thames  and  Mersey  Ins.  Co.,  per  Lord 
Cairnes,  L.  J.,  L.  R.  2  Ch.  App.  617,  623,  36  L.  J.  (Ch.)  864,  865.  See 
also  ante,  p.  337. 


PARTIES   TO    CONTRACTS.  364 

l)ay  its  debts  (s.  80),  and  proceedings  may  then  be 
taken  for  winding  up  the  company,  as  it  is  called 
(s.  79).  The  result  of  these  as  to  the  liability  of  the 
existing  shareholders  is,  that  they  shall  upon  the  wind- 
ing up  be  liable  to  contribute  to  the  assets  of  the  com- 
pany, to  an  amount  sufficient  to  pay  its  debts,  and  the 
.costs,  charges,  and  expenses  of  winding  it  up ;  but  if 
the  company  is  limited,  each  shareholder  will  be  liable 
to  contribute  to  the  assets  of  the  company  to  the  amount, 
if  any,  which  may  remain  unpaid  on  the  shares  held  or 
the  amount  guaranteed  by  him  (ss.  38,  90, 134).  p.:.o/^K-i 
^Moreover,  no  person  who  has  ceased  to  be  a  ^  '  -^ 
shareholder  for  the  period  of  one  year  prior  to  the  com- 
mencement of  the  winding  up,  shall  be  liable  to  con- 
tribute to  those  assets,  nor  shall  any  past  member  be 
liable  in  respect  of  any  debts  of  the  company  contracted 
since  he  ceased  to  be  a  shareholder  (s.  38).  But  if  the 
company  being  wound  up  be  limited,  no  past  or  present 
member  can  be  made  to  contribute  more  than  the  amount 
unpaid  on  his  share,  or  the  amount  he  has  guaranteed ; 
nor,  whether  the  company  be  limited  or  not,  shall  any 
past  member  be  liable  to  contribute,  unless  the  existing 
members  are  unable  to  satisfy  the  contributions  required. 
The  liability  of  any  person  to  contribute  to  the  assets  of 
a  company  registered  under  the  Act,  in  the  event  of  its 
being  wound  up,  is  to  be  deemed  to  create  a  debt  of  the 
nature  of  a  specialty  accruing  due  from  such  person  at 
the  time  when  his  liability  commenced,  but  payable  at 
the  times  when  calls  shall  be  made  for  enforcing  such 
liability  (s.  75). 

As  to  the  rights  of  shareholders  against  the  company, 
every  person  who  has  accepted  any  share  in  a  company 
registered  under  this  Act,  and  whose  name  is  entered 
in  the  register  of  members,  shall  for  the  purposes  of  this 


365  smith's  law  of  contracts. 

Act  be  deemed  a  member.  The  transfer  of  any  share 
may  be  in  a  form  provided  by  the  Act,  and  to  be  exe- 
cuted by  transferror  and  transferree  ;  but  the  transferror 
shall  be  deemed  to  remain  a  holder  of  his  share  until 
r*^fifi1  ^^^  name  of  the  *transferree  is  entered  on  the 
register,  and  the  title  of  every  shareholder  to 
his  shares  shall  be  a  certificate  under  the  common  seal 
of  the  company  specifying  the  shares  held  by  him. 
Finally,  the  amount  of  calls  for  the  time  being  unpaid 
on  his  shares  shall  be  deemed  a  debt  due  from  the 
shareholder  to  the  company  (ss.  23,  31,  Table  A).(/) 

I  have  now  specified  the  various  classes  of  parties 
with  regard  to  whose  competency  to  enter  into  contracts 
I  had  any  particular  observations  to  make ;  and  now, 
assuming  that  none  of  the  various  cases  of  disability 
which  I  have  mentioned  arises,  but  that  the  parties 
entering  into  the  contract  are  competent  by  law  to  do 
so,  there  remains  one  other  very  important  subject  to 
advert  to,  namely,  the  mode  in  which  they  may  become 
parties  to  the  contract.  And  this  must  be  in  one  of  two 
ways ;  either  personally  or  by  the  intervention  of  an 
agent. 

There  are  few  branches,  perhaps  no  branch,  of  the 

r^^fiTI    ^^^^  ^^  England,  to  which  it  becomes  so  often 

^necessary  to  refer,  as  that  which  regulates  the 

rights  of  parties  under  contracts  made  by  agents.     The 

truth  is,  that,  as  society  is  now  constituted,  the  business 

(y)  It  seems  undesirable  to  introduce  more  fully  the  subject  of  the 
law  of  joint-stock  companies  within  the  limits  of  this  work.  For  further 
information  on  that  subject,  reference  may  be  made  to  the  chapter  on 
Joint-Stock  Companies  in  the  last  edition  of  Smith's  Mercantile  Law,  by 
Mr.  Dowdeswell,  where  the  statutes  are  abridged,  and  the  leading  deci- 
sions arranged  with  singular  fullness,  clearness,  and  brevity.  The  stu- 
dent will  also  find  great  advantage  in  consulting  on  this  subject  the  last 
edition  of  Lindley  on  Partnership. 


CONTRACTS    BY    AGENTS.  367 

of  life  has  become  so  complicated,  that  "  no  man's  indi- 
vidual efforts  can  embrace  all  the  subjects  with  which 
he  is  called  on  to  deal."  Hence  we  are  obliged  to 
transact  a  variety  of  business  and  enter  into  a  variety 
of  engagements  through  the  medium  of  agents,  the  pre- 
cise effect  of  whose  acts  in  binding  or  advantaging  us 
becomes  of  course  a  matter  of  the  utmost  practical  im- 
portance. I  cannot,  however,  attempt,  in  the  time 
which  remains  to  me  for  that  purpose,  to  do  more  than 
state  the  general  principles  by  which  the  subject  (so 
far  as  relates  to  contracts)  is  regulated. 

Generally  speaking,  whatever  contract  a  man  may 
enter  into  in  his  own  person,  he  may,  if  he  think  fit, 
appoint  an  agent  to  enter  into  in  his  behalf.  There  are, 
indeed,  one  or  two  exceptions  to  this  rule,  which  arise 
out  of  the  wording  of  certain  Acts  of  Parliament,  re- 
quiring the  intervention  of  the  principal  party  himself 
in  certain  contracts.  For  instance,  a  man  could  not  ap- 
point an  agent  to  sign  a  writing  for  the  purpose  of  ex- 
empting a  case  from  the  operation  of  the  Statute  of 
Limitations,  as  9  Geo.  4,  c.  14,  s.  1,  required  the  writing 
to  be  signed  by  the  party  chargeable  thereby.  (^)  Now, 
however,  by  19  &  20  Vict.  c.  97  (Mercantile  Law 
^Amendment  Act,  1856),  s.  13,  the  signature 
of  a  duly  authorized  agent  is  sufficient  in  that  ^  ^  J 
case.  Nor  can  a  person  who  objects  to  the  name  of 
another  being  retained  upon  the  list  of  voters  in  a  par- 
liamentary borough  empower  an  agent  to  sign  the  ob- 
jection for  him,(/i)  as  6  &  7  Vict.  c.  18,  s.  100,  requires 
every  notice  of  objection  to  be  signed  by  the  person  ob- 

[g)  Hyde  v.  Johnson,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  776  ;  Ley  v. 
Peter,  27  L.  J.  (Ex.)  239  ;  3  H.  &  N.  101. 

(A) -Toms,  app.,  Cuming,  resp.,  7  M.  &  Gr.  (49  E.  C.  L.  R.)  88.  See 
Davies  v.  Hopkins,  27  L.  J.  (C.  P.)  6  ;  3  C.  B.  (N.  S.)  (91  E.  C.  L.  R.) 

376. 


368  smith's  law  of  contracts. 

jecting.  But  it  seems  that,  unless  strictly  required  to 
be  signed  by  the  principal,  it  is  sufficient  if  a  contract, 
required  to  be  in  writing,  be  signed  by  an  authorized 
agent.  (^) 

But,  generally  speaking,  whatever  contract  a  man 
may  lawfully  enter  into  himself,  he  may  appoint  an 
agent  to  enter  into  for  him.  There  is,  however,  another 
extensive  and  important  exception  to  this  rule,  which 
takes  place  when  a  man  is  himself  an  agent.  (>?:)  He 
cannot,  in  this  instance,  appoint  an  agent  to  transact 
the  matters  intrusted  to  his  own  agency.  The  excep- 
tion evidently  arises  from  the  very  nature  of  his  own 
appointment ;  for  it  is  one  thing  to  trust  a  man's  dis- 
cretion to  transact  your  affairs,  and  for  which  you  may 
know  him  to  be  quite  competent,  but  altogether  another 
and  a  different  thing  to  trust  his  discretion  to  select  a 
stranger  to  transact  your  affairs  at  your  responsibility. 
-.  *The  maxims  of  law,  therefore,  are — ^'■Delegatus 
non  potest  delegare,''  and  "  Vicarius  non  habet  vi- 
carium' — maxims  which,  it  is  obvious,  are  necessary 
for  the  principal's  protection,  but  which,  it  is  clear, 
cannot  apply  where  you  expressly  give  your  agent 
power  to  appoint  a  deputy. (/) 

Now  the  considerations  on  which  I  shall  have  occa- 
sion to  touch,  relate  to  one  of  four  points  into  which 
what  I  have  to  say  on  this  subject  may  be  conveniently 
enough  distributed ;  and  they  relate  to  the  questions — 

1.  Who  mag  he  an  agent. 

2.  How  an  agent  is  appointed. 

[i)  Morton  v.  Copeland,  24  L.  J.  (C.  P.)  169  ;  16  G.  B.  (81  E.  C.  L. 
R.)  517. 

[k)  Combe's  case,  9  Co.  76  b  ;  Cobb  v.  Becke,  6  Q.  B.  (51  E.  C.  L.  R.) 
930;  Cockran  v.  Islam,  2  M.  &  Selw.  301  n. 

[l)  Moon  ij.  Whitney  Union,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  817;  Lord 
'v.  Hall,  8  C.  B.  (65  E.  C.  L.  R.)  627. 


CONTRACTS   BY   AGENTS.  369 

3.  How  far  his  contracts  hind  his  principal. 

4.  Hotv  far  the  principal  may  he  advantaged  hy  them. 
Now,  with  regard  to  the  first  point,  namely,  who  is 

competent  to  be  an  agent,  I  have  to  obserA^e,  that  it  by 
no  means  follows  that  a  person  who  is  not  competent  to 
contract  himself  is  therefore  not  competent  to  contract 
as  agent  for  another  person ;  thus  it  has  been  decided 
that  an  infant  may  be  an  agent,  or  even  a  married 
woman,  though  she  could  not  have  contracted  in  her 
own  right.^  Thus,  where  a  married  woman  kept  a 
school,  at  which  the  defendant  had  placed  his  daughter, 
and   drew  upon  him  a  bill  for  the    expenses    of  the 

daughter's  education,  *which  bill,  after  he  had 

.  .  r*3701 

accepted  it,  she  endorsed  to  the  plaintiffs,  and    ^         J 

the  drawing  and  endorsing  of  the  bill  were  both  in  the 
wife's  name,  but  with  the  husband's  assent,  who  also 
obtained  the  value  of  the  bill  from  the  plaintiffs,  it  was 
considered  that  there  was  ample  evidence  of  the  hus- 
band having  authorized  the  drawing  and  endorsing  of 
the  bill,  and  that  there  was  nothing  to  prevent  his 
making  his  wife  his  agent  for  that  purpose.  The  de- 
fendant therefore  as  acceptor,  was  liable  to  the  plaintiffs 
as  indorsees.  (wi()  In  a  very  similar  case,  where  a  wife 
accepted  in  her  own  name  a  bill  drawn  upon  her  hus- 
band, and  his  authority  was  proved,  he  was  held  liable. 
To  the  objection  that  a  drawee  cannot  bind  himself 
otherwise  than  by  writing  his  own  name  on  the  bill, 
which  you  are  no  doubt  aware  is  the  general  practice  in 
accepting  bills,  it  was  asked,  would  he  not  be  liable  if, 

(m)  Prestwiok  v.  Marshall,  7  Bing.  (20  E.  C.  L.  R.)  565 ;  Prince  v. 
Brunatte,  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  435.  See  Lord  v.  Hall,  8  C.  B. 
(65  E.  C.  L.  R.)  627. 

^  A  slave  may  be  an  agent :  The  Governor  «.  Daily,  14  Ala.  469.  ■ 


370  smith's  law  of  contracts. 

with  his  own  hand,  he  had  accepted  the  bill  by  writing 
another's  name  across  ?  The  only  difference  was,  that 
he  had  done  so  by  the  hand  of  his  wife.  Had  he  done 
it  with  his  own  hand,  it  clearly  would  have  been  his 
own  acceptance,  and  the  Court  held  that  there  was  no 
rule  of  law  which  made  such  an  authority  void.  Nobody 
but  the  defendant  could  have  accepted  the  bill  so  as  to 
poPTi-i  bind,  and  he  accepted  it  by  the  hand  and  in  *the 
name  of  his  wife.(w)  It  will  be  obvious  that 
the  general  reason  why  persons  incapacitated  to  con- 
tract may,  notwithstanding  their  incapacity,  act  as 
agents  in  the  contracts  of  others,  is,  that  their  inca- 
pacity is  personal,  and  that  such  contracts^axe  not  their 
own,  but  the  contracts  of  those  whose  agents  theyjire. 

But  it  is  held  that,  upon  the  peculiar  wording  of  the 
Statute  of  Frauds,  one  of  two  parties  entering  into  a 
contract,  such  as  we  have  seen  that  Act  requires  should 
be  in  writing  and  signed  by  the  party  to  be  charged 
thereby,  cannot  be  agent  for  the  other,  even  with  that 
other's  consent,  so  as  to  bind  him  by  his  signature  to 
such  a  writing,  (o)  Thus,  where  the  plaintiff,  an  auc- 
tioneer, sued  the  defendant  for  not  paying  for  goods 
purchased  by  him,  and,  the  goods  not  having  been  de- 
livered, the  only  evidence  of  the  contract  was  the  book 
kept  by  the  plaintiff  as  an  auctioneer,  in  which  he  had 
duly  entered  the  different  biddings  opposite  the  lots ; 
the  Court  of  King's  Bench  held  that,  although  in  gen- 
eral an  auctioneer  may  be  considered  as  the  agent  and 
witness  of  both  parties  (the  vendor  and  the  purchaser), 
3"et  when  he  elects,  as  he  may  do,  to  sue  himself  as  one 
of  the  contracting  parties,  the  agent  who  is  to  bind  a 

(/i)  Lindus  v.  Bradwell,  5  C.  B.  (57  E.  C.  L.  R.)  583. 

[(>)  W^right  V.  Dannah,  2  Camp.  203  ;  Farebrother  v.  Simmons,  5  B.  & 
Aid.  (7  E.  C.  L.  R.)  333  :  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720  ;  40 
L.  .J.  (Q.  B.)  312. 


CONTRACTS    BY    AGENTS.  3.72 

defendant  *by  his  signature  must  be  some  third  rHco-rn-i 
person,  and  not  the  other  contracting  party 
upon  the  record,  (jt?)  To  allow  it,  indeed,  would  seem 
to  amount  to  a  direct  dispensation  with  the  signature  of 
the  party  to  be  bound,  which,  whether  by  his  own  or 
his  agent's  hand,  the  statute  requires.  But  it  seems  to 
be  no  violation  of  this  requirement, — the  hand  of  the 
agent  or  the  principal, — that  the  agent  of  the  one  party 
should  act  as  the  agent  of  the  other,  although,  of  course, 
in  such  a  case  clear  evidence  would  be  required  to  show 
his  authority,  constituting  him  the  agent  of  the  latter. 
Thus,  in  an  action  by  an  auctioneer  against  a  purchaser 
of  goods  sold  by  auction,  the  entry  in  the  auctioneer's 
sale-book,  made  by  the  auctioneer's  clerk  who  was  as- 
sisting at  the  sale,  and  as  each  lot  was  knocked  down 
named  the  purchaser  aloud,  and  on  assent  from  him 
made  an  entry*  of  the  sale  to  him,  was  held  a  sufficient 
memorandum  within  the  17th  section  of  the  Statute  of 
Frauds  ;  the  clerk  being,  in  •the  first  instance,  the  agent 
of  the  auctioneer,  and  constituted  the  agent  of  the  pur- 
chaser by  the  assent  of  the  latter,  when  told  by  the 
clerk  that  the  lot  was  knocked  down  to  him.(^)  But 
where  the  traveller  of  a  wholesale  dealer,  calling  on  a 
shopkeeper  to  sell  his  principal's  goods,  and  having  by 
parol  sold  him  certain  sugar,  was  desired  by  the  latter 
to  make,  in  his  (the  shopkeeper's)  book,  a  r::;0  7o-| 
^memorandum  of  the  transaction,  and  there- 
upon made  the  following — "  Of  North  &  Co.,  30  mats 
maurs,  at  71^., — cash  2  months. — Fenning's  Wharf," 
and  signed  it  with  his  own  name;  the  sugar  having  been 
destroyed  before  it  was  delivered,  it  became  necessary 
to  prove  the  sale  by  a  written  memorandum.;  but  these 

(p)  Farebrother  v.  Simmons,  supra. 
(g)  Bird  v.  Boulter,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  443.- 
26 


6(6  SMITHS   LAW   OF    CONTRACTS. 

facts  were  held  insufficient  to  show  that  the  traveller 
was  constituted  the  agent  of  the  shopkeeper  to  bind  him 
under  the  statute,  (r)  Indeed,  it  seems  clear,  as  ob- 
served in  the  case,  that  the  signing  of  the  entry  in  the 
defendant's  book  would  tend  to  make  it  obligatory  on 
the  plaintiff  rather  than  on  the  defendant. 

With  regard  to  the  second  point,  namely,  in  what 
manner  an  agent  is  to  be  appointed: — Whenever  there 
is  no  particular  rule  of  law  or  special  statutory  provision 
pointing  out  a  particular  mode  of  appointment,  he  may 
be  appointed  even  by  bare  words.  But  there  are  some 
cases  in  which  the  common  or  statute  law  does  require  a 
particular  mode  of  appointment;  for  instance,  it  is  a 
rule  of  common  law,  that  an  agent  who  is  to  contract 
for  his  principal  by  deed,  must,  himself  be  appointed  by 
deed.(s)'^ 

Again,  a  corporation,  as  it  can,  generally  speaking,  do 
^^^74.1  ^^^  ^^^  except  by  deed;  so  it  cannot,  ^generally 
speaking,  appoint  an  agent  in  any  other  way. 
There  are,  indeed,  one  or  two  exceptions  to  this,  as  you 
have  seen  there  are  to  the  rule  which  obliges  them  to 
contract  by  deed,  particularl};^  in  the  cases  of  trading 
companies.     You  will  find  the  rule  and  the  exceptions 

(r)  Graliam  v.  Musson,  5  Bing.  N.  C.  (35  E.  C.  L.  K,)  603  ;  Graham 
V.  Fretwell,   3  M.  &  Gr.  (42  E.  C.  L.  R.)  368  ;  Mews  v.  Carr,  26  L.  J. 

(Ex.)  39  ;  1  H.  &  N.  484. 

(s)  Harrison  v.  Jackson,  7  T.  R.  209. 

^  M'Murty  v.  Frank,  4  Men.  39 ;  Cummings  v.  Cassily,  5  B.  Men.  74  ; 
Boyd  t'.  Dodson,  5  Humph.  37  ;  Bragg  v.  Fessenden,  11  111.  545  ;  Damon 
V.  Granby,  2  Pick.  352  ;  Blood  v.  GoodHch,  12  Wend.  525  ;  Wells  v. 
Evans,  20  Ibid.  258  ;  Rhode  v.  Louthain,  8  Blackf.  413.  Perhaps  the 
most  important  as  well  as  frequently-recurring  cases  to  which  this 
common  law  rule  applies,  are  those  of  contracts  under  seal  made  by 
one  member  of  a  partnership  without  authority  under  seal  from  the 
other. — R. 


CONTRACTS    BY    AGENTS.  374 

discussed  in  Dunston  v.  Imperial  Gas  Light  Company.  (?f) 
With  regard  to  the  case  of  a  stutute  requiring  a  partic- 
ular mode  of  appointment,  you  may  take,  for  example, 
the  Statute  of  Frauds,  the  1st,  2d,  and  3d  sections  of 
which  require,  in  express  terms,  that  the  agent  who  is 
to  do  any  of  the  acts  mentioned  in  those  sections  shall 
be  appointed  by  writing,  whereas  the  4th  and  17th  sec- 
tions contain  no  such  provision.  The  consequence,  of 
course,  is,  that  in  cases  within  these  latter  sections  the 
agent's  authority  need  not  be  in  writing,  {ii) 

With  regard  to  the  third  point,  namely,  in  what  cases 
the  principal  is  bound  by  his  agent's  contract : — It  is,  of 
course,  obvious  at  first  sight,  that  so  far  as  the  agent's 
authority  extends,  his  principal  is  bound  by  all  acts 
done  in  pursuance  of  that  authority.^  So  far  there  can 
be  no  doubt  or  difficulty  whatever.  But  the  cases  in 
which  doubts  and  difficulties  arise,  are  those  in  which 
the  agent  has  gone  beyond  his  authority — has  made 
some  contract  which  his  instructions  do  not  authorize; 
and  then  the  question  arises  whether  his  principal  shall 
or  shall  not  be  bound  by  it.  Now,  in  order  *to  r-^oT-n 
solve  this  question,  it  is  necessary,  in  the  first 
instance,  to  understand  the  distinction  between  general 
and  particular  agency.  A  general  agent  is  an  agent 
entrusted  with  all  his  principal's  business  in  some 
specific  line,  of  some  specific  kind.  A  particular  agent 
is  an  agent  employed  specially  for  some  one  special  pur- 

{t)  3  B.  &  Ad.  (23  E.  C.  L.  R.)  125. 
(?<)  Emmerson  v.  Heelis,  2  Taunt.  46. 

'  Every  one  who  deals  with  an  agent  is  bound,  at  his  peril,  to  ascer- 
tain the  extent  of  his  authority :  Powell  r.  Henry,  27  Ala.  612.  The 
authority  of  a  general  agent  to  contract  so  as  to  bind  his  principal  is 
only  limited  to  the  usual  and  ordinary  means  of  accomplishing  the  busi- 
ness entrusted  to  him  :  Williams  v.  Getty,  31  Penn.  St.  461  ;  McAlpin 
V.  Cassidy,  17  Tex.  449. 


375  smith's  law  of  contracts. 

pose.  For  instance,  if  I  entrust  another  with  the  sale 
of  a  particular  horse,  of  which  I  am  desirous  of  dispos- 
ing, he  is  a  particular  agent  to  transact  that  particular 
business,  (.t)  But  if  I  appoint  an  agent  to  sell  all  my 
horses,  and  consign  horses  to  him  from  time  to  time  for 
sale,  he  is  my  general  agent  in  that  line  of  business. 
Now,  there  is  this  important  distinction  between  con- 
tracts made  by  general,  and  those  made  by  particular 
agents — namely,  that  if  a  particular  agent  exceed  his 
authority,  his  principal  is  not  bound  by  what  he  does;^ 

[x)  Brody  v.  Tod,  30  L.  J.  (C.  P.)  223 ;  9  C.  B.  (N.  S.)  (99  E.  C.  L.  R.) 
592. 

v^"*Thus,  in  Batty  v.  Carswell,  2  Johns.  48,  where  one  who  was  author- 
ized to  sign  a  note  for  another  for  $250,  payable  in  six  months,  signed 
one  payable  in  sixty  days,  it  was  held  that  the  principal  was  not  liable, 
because  the  authority,  which  was  a  special  one,  was  not  strictly  pursued. 
So,  a  clerk  in  a  retail  store  has  no  authority  to  sell  by  wholesale,  or  to 
deliver  goods  in  payment  of  or  security  for  debts  :  Beals  v.  Allen,  18 
Johns.  362 ;  Hampton  v.  Matthews,  14  Penn.  St.  107.  So,  a  clerk  em- 
ployed to  do  outdoor  business  of  .a  merchant,  such  as  to  negotiate  pur- 
chases and  charter-parties,  present  bills  of  lading  for  signature,  &c.,  has 
no  authority  to  pledge  these  bills  of  lading,  or  receive  advances  on 
them  :  Zachrisson  v.  Ahman,  2  Sandf.  68.  So,  one  employed  by  a  mer- 
chant to  purchase  goods,  give  notes,  and  do  all  other  things  in  his  business 
as  merchant  will  not  authorize  the  mortgage  of  goods  in  the  merchant's 
store :  Reeves  v.  Baldwin,  1  Smith  170.  So,  one  having  authority  to 
collect  a  note,  has  none  to  take  a  sealed  note  for  the  amount,  and  there 
will  be  no  merger  of  the  original  debt :  M'Culloch  v.  M'Kee,  16  Penn. 
St.  289.  So,  if  a  shopman  authorized  to  receive  money  over  the  counter 
only  receives  it  elsewhere  than  in  the  shop,  the  payment  is  not  good : 
Kaye  v.  Brett,  5  Exch.  273.  Other  instances  of  the  application  of  this 
familiar  i-ule  may  be  found  in  Andrews, w.  Kneeland,  6  Cow.  354; 
Thompson  v.  Stewart,  3  Conn.  171  ;  Snow  v.  Perry,  9  Pick.  542  ;  Lob- 
dell  V.  Baker,  1  Mete.  201 ;  Huntingdon  v.  Wilde,  6  Verm.  234  ;  Brown 
V.  Billings,  22  Ibid.  128  ;  Gordon  v.  Buchanan,  5  Yerg.  71 ;  Bank  of 
Hamburg  v.  Johnson,  3  Rich.  42 ;  Carter  v.  Taylor,  6  Sm.  &  Marsh. 
367  ;  Shriver  v.  Stevens,  2  Jones  258 ;  Scott  v.  M'Grath,  7  Barb.  S.  C. 
53  ;  Paige  v.  Stone,  10  Met.  160.— R. 

Taylor  v.  Labeaume,  14  Mo.  572  ;  Nash  v.  Drew,  5  Cush.  422  ;  The 
Methuen  Co.  v.  Hayes,  33  Me.  169  ;  Bailey  v.  Rawley,  1  Swan.  295  ; 


CONTRACTS    BY    AGENTS.  375 

whereas,  if  a  general  agent  exceed  his  authority,  his 
principal  is  bound,  provided  what  he  does  is  within  the 
ordinary  and  usual  scope  of  the  business  he  is  deputed 
to  transact.  For  instance,  if  I  employ  A.  to  carry  a 
bale  of  cottons  from  Manchester  to  Liverpool,  and  he 
sells  them,  I  am  not  bound  by  the  sale,  but  may  bring 
an  action  of  trover  for  them  against  the  purchaser; 
whereas,  had  I  entrusted  them  to  my  factor  for  the 
same  purpose,  I  should  have  been  bound  by  the  sale, 
that  being  a  ^transaction  within  the  ordinary  r::.:or-p-j 
scope  of  his  business  as  factor. (j/)^ 

(y)  See  Fenn  v.  Harrison,  3-T.  R.  757  ;  4  T.  R.  177. 

Kirk  V.  Hiatt,  2  Cart.  322  ;  Towle  v.  Leavitt,  3  Fost.  360  ;  Hiiber  v. 
Zimmerman,  21  Ala.  488.  An  agent  employed  to  buy  and  sell  has  no 
authority  to  bind  his  principal  by  a  negotiable  note  given  for  notes 
bought :  Temple  v.  Pomroy,  4  Gray  128. 

^  A  factor  is  a  general,  not  a  special  o.gent,  entrusted  with  the  posses- 
sion, disposal,  and  apparent  ownership  of  property  ;  and  having  a  gene- 
ral power  to  sell,  he  may  do  so  for  cash  or  on  credit,  and  receive  in 
payment  notes  or  any  kind  of  prop'erty.  Notwithstanding  this  general 
authority,  it  was,  however,  held  in  England,  in  the  case  of  Patterson  v. 
Tash,  2  Str.  1178,  that  "  a  factor  cannot  bind  or  aifect  the  property  of 
the  goods  by  pledging  them  as  a  security  for  his  own  debt,  though  there 
may  be  the  formality  of  a  bill  of  parcels  and  a  receipt,"  and  this  decision 
has  been  followed,  though  with  occasional  reluctance,  by  numerous  cases : 
Daubigny  v.  Duval,  5  T.  R.  604 ;  Martini  v.  Coles,  1  M.  &  Sel.  140,  493 ; 
Graham  v.  Dyster,  6  Ibid.  1,  14;  Queiroz  v.  Trueman,  3  B.  &  C.  (10  E.  C. 
L.  R.)  342  ;  Fielding  v.  Kymer,  2  Brod.  &  Bing.  (6  E.  C.  L.  R.)  639.  Such 
is  recognised  as  the  rule  on  this  side  of  the  Atlantic,  unless  where  it  has 
been  altered  by  statute :  Van  Amringe  v.  Peabody,  1  Mason  440  ;  Kinder  v. 
Shaw,  2  Mass.  398  ;  Odiorne  v.  Maxcy,  13  Ibid.  178  ;  Hoffman  v.  Noble,  6 
Mete.  74  ;  Holton  v.  Smith,  7  N.  H.  446  ;  Newbold  v.  Wright,  4  Rawle 
195  ;  Kennedy  v.  Strong,  14  Johns.  128  ;  Hewes?;.  Doddridge,  1  Robinson 
143.  It  has,  however,  been  held  that  although  a  factor  has  not  authority 
to  pledge,  yet  he  can,  in  the  usual  course  of  mercantile  dealing,  deliver 
for  sale  to  a  broker,  auctioneer,  &c.,  the  goods  entrusted  to  him,  and 
receive  money  upon  them  as  an  advance,  and  the  deposit  will  bind  the 
principal,  who  cannot  recover  them  in  trover  :  Martini  v.  Coles,  supra  ; 
Laussatt  v.  Lippincott,  6  S.  &  R.  386  ;  Martin  v.  Moulton,  8  N.  H.  504  ; 
Bowie  V.  Napier,  1  M'Cord  1.     But  the  rule  thus  established  by  Patter- 


376  smith's  law  of  contracts. 

The  case  of  Whitehead  v.  Tuckett(0)  is  a  very  good 
illustration  of  the  rule,  that,  although  the  express  in- 
structions are  exceeded,  yet,  if  what  he  does  is  within 
the  usual  scope  of  the  business  he  is  deputed  to  trans- 
act, the  agent  binds  his  principal  by  so  doing.  There, 
Sill  &  Co.,  who  were  brokers  at  Liverpool,  were  em- 
ployed by  the  defendant,  a  wholesale  grocer  at  Bristol, 
to  buy  and  sell  on  his  account  great  quantities  of  sugar. 
The  greater  part  was  bought  on  speculation  for  re-sale, 
and  was  re-sold  at  Liverpool ;  but  some  was  occasionally 
sent  to  the  defendant.  Sill  &  Co.  usually  bought  and 
paid  for  the  sugar,  and  re-sold  in  their  own  names  and 
received  the  price.  They  did  not  draw  upon  the  de- 
fendant for  the  amount  of  each  purchase,  nor  remit  him 
the  bill  in  payment  of  each  sale;  but  there  was  a  gene- 
ral running  account  between  them.  Sill  &  Co.  never 
had  a  general  authority  to  buy,  but  received  directions 
in  each  instance;  but  sometimes,  when  the  markets  were 
low,  had  unlimited  authority  as  to  the  quantity  they 
were  to  buy,  or  the  price  they  were  to  pay.  In  like 
manner,  they  had  no  general  authority  to  sell,  but  re- 
ceived directions  on  each  occasion.  It  was  held  that 
P^.oh,--,-|  they  might  bind  their  principal  by  a  re-sale 
of  a  particular  '"parcel  of  sugar  before  pur- 
chased and  paid  for  in  their  own  names  and  lodged 
in  their  own  warehouse,  though  such  re-sale  was  for 
a   price  less  than  they  were   directed  by  their  prin- 

(z)  15  East  400.     See  In  re  Athenaeum  Life  Ass.  Co.,  27  L.  J.  (Ch.) 

829.  .     ' 

son  V.  Tash,  having  been  thought  to  impose  undue  restrictions  upon  the 
facilities  of  commercial  dealings,  has  been  altered  by  the  acts  of  Parlia- 
ment referred  to  by  the  English  editor,  supra^  which  have  been  copied 
with  more  or  less  exactness  in  New  York,  Pennsylvania,  Rhode  Island, 
Ohio,  Massachusetts,  and  some  other  States.  See  the  note  to  Laussatt 
y.  Lippincott,  in  1  Am.  Lead.  Cases  668. — r. 


CONTRACTS    BY    AGENTS.  d/7 

Clivals  to  sell  for;  for  the  Court  considered  that  the  gen- 
eral authority  of  the  broker  to  sell  being,  in  respect 
of  those  who  did  not  know  their  private  instruc- 
tions, to  he  collected  from  their  general  dealing^  was  not 
limited  by  such  private  instructions.  So,  where  the 
real  principal  in  a  business  holds  out  an  agent  as  the 
ostensible  principal,  and  carries  it  on  under  his  manage- 
ment and  in  his  name,  he  is  bound  by  all  such  acts  and 
contracts  as  are  incidental  to  the  ordinary  conduct  of 
the  business,  and  this  obligation  cannot  be  restricted  by 
any  private  arrangement  between  them.(«)  On  the 
other  hand,  the  following  case  illustrates  the  rule  as  to 
the  particular  agent.  The  defendant,  being  about  to 
purchase  a  mare,  wrote  to  the  plaintiff,  "I  will  take  the 
mare  at  twenty  guineas,  of  course  w^atranted;"  and  sub- 
sequently wrote  again,  "My  son  will  be  at  the  World's 
End  (a  public-house)  on  Monday,  when  he  will  take  the 
mare  and  pay  you:  send  anybody  with  a  receipt  and 
the  money  shall  be  paid,  only  say  in  the  receipt  sound 
and  quiet  in  harness."  The  plaintiff  wrote  in  reply, 
"She  is  warranted  sound,  and  quiet  in  double  harness;" 
and  the  mare,  having"  been  broui>ht  to  the  World's  End 
on  ^Monday,  was  taken  away  by  the  defend-  r:i:or-o-i 
ant's  son  without  paying  the  price,  and  without 
a  receipt  or  warranty.  The  defendant  kept  her  two 
days,  and  then  returned  her  as  being  unsound.  The 
writings  between  the  parties  not  amounting  to  a  com- 
plete contract,  it  was  sought  to  show  that  the  defendant 
wns  bound  by  the  conduct  of  his  son,  as  amounting  to 
an  acceptance  in  law.  But  it  will  clearly  be  perceived 
that  the  son  was  a  particular  agent,  in  which  case  his 
principal  is  not  bound  by  what  he  does  if  he  exceeds 
his  authority.     "The  son,"  said  Parke,  B.,  "had  only  a 

(a)  Edmunas  r.  Bushcll,  L.  11.  1  Q.  B.  97  ;  35  L.  J.  (Q.  B.)  20, 


378  smith's  law  of  contracts. 

limited  authority;  and  if  a  party  contracts  with  another 
through  his  agent,  he  can  only  take  such  rights  as  the 
agent  can  give:  and  this  is  no  hardship  on  the  plaintiff, 
because  he  was  distinctly  informed  that  the  son  was 
authorized  to  receive  the  mare  if  a  warranty  were  given 
that  she  was  quiet  in  harness."  This  was  not  given, 
and,  therefore,  the  son  had  no  authority  to  accept  the 
mare,  and  the  defendant  was  not  bound  by  the  son's 
act.(^) 

Now  the  reason  for  this  distinction  between  the  case 
of  a  general  and  particular  agent  is  very  clear  and  sim- 
ple: it  is,  that  the  public  may  not  be  deceived.  If 
strangers  see  A.  selling  my  goods  day  after  day,  month 
after  month,  and  see  me  recognising  the  transactions, 
and  receiving  payment  on  that  understanding,  they  may 
r*Q'-'q"i  naturally  enough  ^suppose  that  I  have  given  him 
a  general  authority  to  sell,  and  that  they  may 
safely  deal  with  him  on  my  account ;  and  it  would  be 
hard  indeed  if  I  were  allowed  to  turn  round  upon  them 
and  say,  "  True,  he  has  a  general  authority,  but  I  had 
revoked  it  in  this  particular  instance."  But,  in  the  case 
of  a  particular  agent,  it  is  otherwise ;  for,  as  he  is  em- 
ployed on  one  particular  occasion  only,  there  are  no  pre- 
vious acts  done  by  him  for  his  principal,  or  recognitions 
of  them  by  the  principal,  which  can  have  a  tendency  to 
mislead  any  one.  And  there  is  no  hardship  in  saying 
to  the  person  who  deals  with .  him,  "  You  must  satisfy 
yourself  that  he  is  my  agent  at  all,  and  when  jou.  do  so 
you  may  as  well  satisfy  yourself  for  what  purposes  he 
is  my  agent,  and  how  far  his  authority  extends."^ 

Such  then  is  the  distinction  between  a  particular  and 

(6)  Jordan  v.  Norton,  4  M.  &.  W.  155,  162. 

•  ^  Snow  V.  Perry,  9  Pick.  542  ;  Fisher  v.  Campbell,  9  Port.  210  ;  John- 
son V.  Wingate,  29  Me.  4U4  ;  Hatch  v.  Taylor,  10  N.  H.  547.— R. 


tJONTRACTS   BY   AGENTS.    "^  379 

a  general  agent ;  and  with  regard  to  the  latter,  there  is, 
for  the  further  protection  of  the  public,  this  further  rule, 
that  the  aidhority  of  a  general  agent  is,  as  far  as  the  puhlic 
are  concerned,  measured  hy  the  extent  of  his  usual  employ- 
ment. This  is  also  a  rule  of  common  sense  as  well  as 
law ;  for  what  I  see  a  man  continually  doing  with  the 
approbation  of  another,  I  may  fairly  conclude  he  has  a 
general  authority  to  do.  I  have  not,  it  is  true,  seen  his 
instructions,  but  I  am  justified  in  believing  that  he  acts 
according  to  them  when  I  see  that  his  principal  does  not 
signify  disapprobation  of  his  proceedings  ;  and  therefore 
the  rule  is,  that  where  *a  man  permits  another 
to  act  generally  for  him  in  any  line  of  business,  '-  -• 
he  is  bound  by  contracts  made  by  that  other  in  that  line 
of  business ;  although,  in  truth  and  in  fact,  the  person 
so  acting  may  have  a  limited  authority,  or  even  no 
authority  at  all.  This  is  laid  down  by  Lord  Holt,  in 
homely,  but  forcible  language,  in  Shower  95,  where  it 
is  thus  reported  : — 

^'■Memorandum. — Upon  evidence  in  an  assumpsit  for 
wares  sold,  it  was  held  by  Holt,  C.  J.,  that  if  a  man 
send  his  servant  with  ready  money  to  buy  meat  or  other 
goods,  and  the  servant  buys  upon  credit,  the  master  is 
not  chargeable.^  But  if  the  servant  usually  buy  upon 
tick,  and  the  servant  buy  some  things  without  the  mas- 
ter's order,  yet,  if  the  master  were  trusted  by  the  trader, 
the  master  is  chargeable." 

^  Boston  Iron  Co.  v.  Hale,  8  N.  H.  363.  Otherwise,  of  course,  if  the 
servant  or  agent  be  ordered  to  buy,  and  be  not  furnished  with  money  :. 
Sprague  v.  Gillett,  9  Mete.  91. — r. 

When  the  authority  of  an  agent  is  in  question  as  to  a  certain  sale, 
evidence  of  similar  sales  made   subsequently   under   different  circum- 
stances is  not  .admissible  to  show  ratification  of  the  first' sale,  such  facts 
being  collateral,  and  not  afibrding  a  reasonable  inference  as  to  the  mat-' 
ter  in  dispute  :  TfCe  v.  Tinges,  7  Md.  215. 


380  smith's  law  of  contracts. 

There  is  a  case  of  Rusby  v.  Scarlett,  (<?)  which  affords 
a  good  illustration  of  this.  The  plaintiff  was  a  corn- 
chandler,  who  sued  the  defendant  for  the  price  of  hay 
and  straw  sold  for  the  use  of  the  defendant's  horses.  He 
had  delivered  it  at  the  defendant's  stables,  and  also  bills 
of  parcels,  but  had  never  seen  the  defendant  or  received 
any  order  from  him,  or  any  payment  whatever  directly 
from  him.  The  defence  was  that  the  defendant  had 
given  his  coachman  money  to  pay  the  bills,  which  he 
p;!:oo-|-|  had  embezzled.  The  defendant  kept  a  book 
'''with  his  coachman,  in  which  were  entered  the 
articles  procured  by  him,  and  money  from  time  to  time 
advanced  to  him ;  but  there  did  not  appear  to  be  any 
connection  between  the  sums  advanced  to  the  servant, 
and  the  demands  which  he  was  to  pay ;  but  the  money 
was  advanced  generally.  "  If,"  said  Lord  Ellenborough 
to  the  jury,  "the  servant  was  always  in  cash  beforehand 
to  pay  for  the  goods,  the  master  is  not  liable,  as  he  never 
authorized  him  to  pledge. his  credit.  But,  if  the  servant 
w-as  not  so  in  cash,  he  gave  him  a  right  to  take  up  the 
goods  on  credit :  and  I  think  he  would  be  liable,  as  the 
servant  has  not  paid  the  plaintiff,  though  he  might  have 
received  the  money  from  the  defendant,  his  master." 
Upon  the  law  thus  laid  down,  the  jury  found  a  verdict 
for  the  plaintiff.  "  SuiDpose,"  said  Lord  Denman,  C.  J., 
in  another  case,  "  a  landed  proprietor  had  to  send  his 
steward  habitually  to  the  neighboring  fairs  and  markets 
to  make  sales  and  purchases  for  him  in  matters  con- 
nected with  the  management  of  his  estate ;  that  the 
steward  makes  all  these  contracts  in  his  own  name,  but 
that  he  is  universally  known  to  have  no  land  of  his  own, 
and  to  be  acting  solely  for  his  employer,  by  his  direction 
and  on  his  credit.     Could  his  intention  to  make  himself 

(c)  5  Esp.  76. 


CONTRACTS    BY    AGENTS.  381 

the  owner  of  articles  bought  on  one  particular  occasion 
in  the  course  of  the  same  dealing,  deprive  the  vendor  of 
his  recourse  against  the  master  ?  Clearly  not."  In  this 
instance  every  one  would  naturally  suppose  p^.^Qn-i 
*that  the  proprietor  w^ho  authorized  him  to  '-  '  ""-^ 
purchase  in  numerous  cases,  authorized  him  to  purchase 
in  that  case  also,  in  which  he  appropriated  the  thing 
purchased  to  himself,  and  the  proprietor  could  not  in 
common  reason  and  justice  be  allowed  to  say  to  a  person 
dealing  innocently,  that  he  did  not  authorize  him  in  that 
instance,  (c?)  In  the  case(e)  from  which  these  observa- 
tions are  taken,  the  defendant,  who  was  a  merchant  at 
St.  Petersburgh,  had  for  a  long  time  carried  on  business 
in  London  through  one  Higginbotham,  in  all  the  trans- 
actions of  which  business  Higginbotham  always  used  his 
own  name,  but  was  universally  known  to  represent  the 
defendant  in  them.  He  had  himself  neither  capital  nor 
credit.  The  defendant  put  an  end  to  the  agency ;  and 
afterwards  Higginbotham  made  the  contract  (a  sale  of 
tallow)  on  which  the  action  was  brought,  in  all  respects 
as  if  it  had  been  in  the  defendant's  business,  in  his  own 
name  as  usual,  and  notwithstanding  the  termination  of 
his  agency ;  and  the  defendant  was  quite  ignorant  of 
the  transaction.  These  were  substantially  the  facts  in 
the  case.  The  defendant  was  held  bound  to  deliver  the 
tallow.  A  motion  for  a  new  trial,  on  the  ground  that 
the  sale  was  made  by  Higginbotham  on  his  own  account, 
was  refused,  on  the  ground  that  he  was  trading  in  his 

own  name  as  the  defendant's  *ao-ent,  with  the    ^,„^^_. 

r  3831 
defendant's  full  knowledge  and  authority ;  and    '-        -^ 

that  till  the  defendant  gave  notice  to  the  world  that  he 

revoked  Higginbotham's  power  to  act  for  him,  all  per- 

{d)  Tnioman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  593. 
(e)  Ibid.  589. 


383  smith's  law  of  contracts. 

sons  had  a  right  to  hold  him  to  the  contracts  made  by 
Higginbotham.  In  a  word,  said  the  Court,  it  was  con- 
sidered that  the  defendant  was  carrying  on  his  business 
in  the  name  of  Higginbotham. 

The  case  of  Pickering  v.  Busk(/)  is  in  accordance 
with  the  same  rule.  There  a  broker  in  London,  en- 
gaged in  the  hemp  trade,  purchased  for  the  plaintiff,  a 
merchant  at  Hull,  a  parcel  of  hemp  then  lying  at  a 
wharf  in  the  vendor's  name,  and  the  hemp  was,  by  the 
plaintiff's  desire,  transferred  in  the  wharfinger's  books 
from  the  vendor's  name  to  the  broker's,  and  paid  for  by 
the  plaintiff.  The  broker  while  the  hemp  was  remain- 
ing there  in  his  name,  contracted  for  the  sale  of  hemp 
on  his  own  account  to  H.  &  Co.,  and  having  none  of  his 
own  to  deliver,  transferred  the  plaintiff's  hemp  to  H.  & 
Co.,  and  received  the  money.  In  this  case  the  question 
was,  whether  the  broker  had  authority  to  sell — it  is 
clear  that,  as  between  himself  and  the  plaintiff,  his  prin- 
cipal, he  had  it  not ;  and  the  only  question  was,  whether 
the  latter,  by  permitting  the  broker  to  act  as  he  had 
done  in  the  purchase  and  transfer  of  the  hemp,  was 
bound  by  his  contract  with  respect  to  it,  made  with  a 
r*^8i1  person  *who  knew  nothing  of  the  broker's  real 
authority.  The  Court  considered  that  the 
broker  in  this  case  was  a, general  seller  of  hemp;  that 
the  hemp  in  question  was  left  in  the  custody  of  the 
wharfinger  in  the  broker's  name ;  and  that  no  stranger 
could  suppose  that  it  would  be  so  left  in  the  broker's 
name,  but  in  order  that  the  broker  might  dispose  of  it 
in  his  ordinary  business  as  a  broker ;  and  they  deter- 
mined, that,  the  latter  having  sold  the  hemp,  the  prin- 
cipal was  bound. 

The  same  principle  is  illustrated  by  cases  relating  to 

(/)  15  East  38. 


CONTRACTS    BY   AGENTS.  384 

the  liability  of  the  provisional  committeemen,  or  the 
directors,  or  the  chairman,  of  a  proposed  company  for 
the  contracts  of  other  committeemen,  &c.,  or  the  secre- 
tary. Where  they  give  each  other,  or  a  secretary,  or 
an  original  promoter,  apparently  the  power  to  bind 
them,  they  will  be  liable  upon  contracts  made  by  him 
in  their  names,  although  they  expressly  prohibit  him 
so  to  do ;  or,  though  there  may  be  a  private  arrange- 
ment between  them,  that  he,  and  not  they,  are  to  be 
liable.  Provisional  directors  of  a  projected  joint  stock 
company,  who  were  induced  to  become  such  by  the 
representations  of  the  nominal  secretary  (the  getter  up 
of  the  company),  that  he  would  pay  the  preliminary  ex- 
penses, and  that  they  should  not  be  liable,  passed  a 
resolution  inter  alia  that  the  company  should  be  adver- 
tised. The  secretary  agreed  with  the  plaintiff  for  ad- 
vertising the  company,  showing  him  the  resolution  of 
the  directors,  *but  not  informino;  him  of  the 

.      .  r*385n 

above  understanding  with  the  directors.  The  •-  '  -■ 
latter  were  held  liable  to  the  plaintiff"  for  the  advertise- 
ments. (^) 

There  is  a  series  of  instances,  showing  that  where  a 
man  appoints  another  to  act  for  him  in  any  line  of  busi- 
ness, he  is  bound  by  contracts  made  by  him  according 
to  usage  therein,  which  instances,  althougli  tJiey  consist 
of  disputes  between  the  principal  and  agent,  and  not 
like  those  we  have  been  considering  between  the  princi- 
pal and  the  party  with  whom  the  agent  has  contracted, 
thi'ow  a  great  deal  of  light  upon  the  obligation  of  the 
principal  derived  from  the  ordinary  mode  of  transacting 
business,  and  in  that  point  of  view  it  will  be  useful  to 

[g)  Maddick  v.  Marshall,  16  C.  B.  (N.  S.)  (Ill  E.  C.X.  R.)  387;  17 
C.  B.  (N.  S.)  Ex.  Ch.  (112  E.  C.  L.  R.)  829 ;  Riley  v.  Packington,  L.  R. 
2  C.  P.  536 ;  36  L.  J.  (C.  P.)  204. 


385  smith's  law  of  contracts. 

mention  some  of  them  here.  The  first  of  these  instances 
is  that  of  Sutton  v.  Tatem,(/i)  where  a  jDorson  employed 
a  broker  to  sell  250  shares  in  the  South  Australian 
Company ;  he  was  in  an  error  as  to  the  number ;  he 
meant  to  say  50  shares,  and  in  reality  he  had  no  more. 
The  broker  contracted  with  another  broker  on  the  Stock 
Exchange  for  the  sale.  The  shareholder  on  the  next 
day  informed  his  broker  of  the  mistake,  and,  finding 
|-^oop-|  the  bargain  '-'could  not  be  made  void,  requested 
him  to  do  the  best  he  could.  By  the  rules  of 
the  Stock  Exchange,  in  sales  of  this  description,  if  the 
vendor  is  not  prepared  to  complete  his  contract,  the 
purchaser  buys  the  requisite  number  of  shares,  and  the 
vendor's  broker  is  bound  to  make  up  the  loss,  if  any, 
resulting  from  a  difference  in  prices.  Accordingly,  the 
vendor  being  unable  to  complete  his  contract,  and  the 
purchaser  having  bought  the  requisite  number  of  shares 
at  a  loss,  the  broker  paid  the  difference,  and  was  held 
by  the  Court  of  Queen's  jBench  entitled  to  recover  that 
difference  from  his  principal  the  shareholder.  "  For," 
said  Mr.  Justice  Littledale,  "  a  person  who  employs  a 
broker  must  be  supposed  to  give  him' authority  to  act 
as  other  brokers  do.  It  does  not  matter  whether  or  not 
he  himself  is  acquainted  with  the  rules  by  which  brokers 
are  governed."  "  I  consider  it  to  be  clear  law,"  said 
Mr.  Baron  Parke,  in  the  subsequent  case  of  Bajdiffe  v. 
Butterworth,(/)  "  that  if  there  is  at  a  particular  place 
an  established  usage  in  the  manner  of  dealing  and 
making  contracts,  a  person  who  is  employed  to  deal  or 

{h)  10  A.  &  E.  (37  E.  C.  L.  K.)  27.  See  Heyworth  v.  Knight,  33  L. 
J.  (C.  P.)  298  ;  Mollett  v.  Robinson,  L.  R.  5  C.  P.  646  ;  7  C.  P.  84  ;  39  L. 
J.  (C.  P.)  290;  41  Ibid.  65. 

(/)  1  Exch.  428.  See  also,  as  to  the  binding  force  of  usage  though 
unknown  to  the  employer  of  the  broker,  Mollett  v.  Robinson,  L.  R.  5  C. 
P.  646  :  Ibid.  7  C.  P.  84 ;  s.  c.  39  L.  J.  (C.  P.)  290;  41  Ibid.  65, 


CONTRACTS   BY   AGENTS.  386 

make  a  contract  there,  has  an  implied  authority  to  act 
in  the  usual  way ;  and  if  it  be  the  usage  that  he  should 
make  the  contract  in  his  own  name,  he  has  authority  to 
do  *so.  It  appears  to  me,  that  a  person  who  ^^^  <;,„-, 
authorizes  another  to  contract  for  him,  author-  L  '  ^  J 
izes  him  to  make  that  contract  in  the  usual  way."  Thus 
it  has  been  held,  that  one  who  employs  a  broker  to  buy 
railway  shares  for  him,  authorizes  him  by  that  employ- 
ment to  do  all  that  is  needful  to  complete  the  bar- 
gain ;  ik)  and,  therefore,  where  the  defendant  employed 
a  broker  and  member  of  the  Stock  Exchange  to  buy 
some  shares  for  him  in  the  Vale  of  Neath  Railway  at 
30.S.  discount,  and  at  the  time  of  the  purchase  a  call  had 
been  made  but  was  not  payable,  and  the  seller  of  the 
shares,  in  order  to  enable  him,  the  seller,  to  transfer 
them,  paid  the  call,  which  the  defendant  refused  allow  ; 
and  the  broker,  being  responsible  by  the  rules  of  the 
Exchange  for  the  completion  of  the  contract,  paid  it ; 
the  broker  was  allowed  to .  recover  the  money  so  paid 
from  thd  defendant,  the  purchaser  of  the  shares.  The 
meaning  of  this  contract  clearly  was  that  the  purchaser 
should  become  the  owner  of  the  shares  upon  payment 
of  all  such  sums  which  the  prior  holders  might  have 
l^aid  or  become  liable  to  pay  in  respect  of  them,  less  oOs. 
The  authority,  therefore,  given  to  the  plaintift'  enabled 
him  to  buy  the  shares,  and  to  incur  a  liability  to  pay 
all  that  had  been  paid  upon  them  and  that  they  then 
stood  charged  with,  less  SO^. 

In  like  manner,  the  power  of  a  master  of  a 
*ship  to  bind  his  owners  being  but  a  branch  of    ^  '^     ^ 
the  general  law  of  agency,  it  is  clear  that  when  a  master 
contracts  as  such  in  a  foreign  port  to  carry  goods  for  a 
foreigner,  his  authority  to  bind  his  owner  is  that  con- 

{k)  Baylcy  v.  Wilkin^,  7  0.  B.  (02  E.  C.  L.  11.)  880. 


388  smith's   LAW    OF    CONTRACTS. 

ferred  by  the  law  of  the  country  to  which  his  ship  be- 
longs ;  and  the  flag  of  his  ship  is  notice  to  all  the  world 
that  his  implied  authority  is  limited  by  the  law  of  that 
flag.(/)  Where  a  defendant  carried  on  the  business  of 
a  horsedealer,  and  S.,  who  assisted  him  in  his  business, 
and  was  also  himself  a  horsedealer,  sold  for  him  a  horse 
to  the  plaintiff,  and  warranted  him  to  be  sound,  it  was 
held  that,  it  being  within  the  scope  of  a  horsedealer's 
business  to  give  a  warranty  whenever  the  giving  of  a 
warranty  may  form  part  of  the  transaction,  no  evidence 
was  admissible  to  show  that  the  defendant  forbade  S. 
to  warrant.  (w2) 

Of  course  the  principal  would  not  be  bound  by  any 
rule  or  custom  of  trade  made  after  the  transaction  was 
completed,  however  it  might  bind  the  agent  ;(w)  and  it 
will  appear  equally  clear  that  if  he  deviates  from  the 
course  usual  in  the  line  of  business  in  which  he  is  em- 
ployed, he  not  only  has  no  authority  in  fact,  but  does 
not  seem  to  have  any,  and,  consequently,  cannot  bind 
his  principal  thereby.  Thus,  although  the  master  of 
PSSQ1  ^  ^^^P  ^^^  *bind  the  owners  by  a  bill  of  lading 
for  goods  received  on  board  the  ship,  a  bill  of 
lading,  although  in  the  usual  terms,  given  by  the  mas- 
ter, in  an  instance  where  goods  had  never  been  received 
on  board,  does  not  bind  the  owners  even  in  the  hands 
of  an  assignee.  All  persons  taking  a  bill  of  lading  by 
indorsement  or  otherwise,  have  notice  that  the  master's 
authority  is  limited  to  signing  bills  of  lading  for  goods 
received  on  board,  and  must  themselves  bear  the  conse- 
quences of  the  master's  falsehood,  (o)     On  a  somewhat 

(0  Lloyd  V.  Guibert,  33  L.  J.  (Q.  B.)  241  ;  35  Ibid.  74 ;  L.  R.  1  Q.  B. 
115  (Ex.  Ch.). 

[m)  Howard  v.  Sheward,  L.  R.  2  C.  P.  148  ;  36  L.  J.  (C.  P.)  42. 

[n]  Westropp  v.  Solomon,  8  C.  B.  (65  E.  C.  L.  R.)  345. 

(o)  Grant  v.  Norway,  20  L.  J.  (C.  P.)  98 ;  10  C.  B.  (70  E.  C.  L.  R.) 


CONTRACTS   BY    AGENTS.  389 

similar  principle,  in  a  case  where  the  defendant  author- 
ized an  insurance  broker  at  Liverpool  to  underAvrite 
policies  not  exceeding  a  certain  amount,  and  the  broker 
acted  in  excess  of  his  authority,  the  principal  was  held 
not  liable,  it  being  the  custom  at  Liverpool  to  impose  a 
secret  limit  on  the  amount  for  which  an  insurance  bro- 
ker can  sign  his  princiiDal's  name.(p) 

It  has  no  doubt  been  observed  in  the  examples  just 
given,  that  in  some  of  them  the  extent  of  the  agent's 
authority  is  expressly  prescribed,  in  some  partly  ex- 
pressed and  partly  not  expressed,  and  in  others  alto- 
gether implied.  It  is  implied  from  the  position  or 
capacity  in  which  a  person  acts.  Of  '^this  de-  r:i:qqo-i 
scription  is  the  agency  of  factors,  brokers,  of 
partners.,  wives,  and  servants,  all  of  whom  have  an  im- 
plied or  constructive  authority  to  bind  those  for  whom 
they  act,  or  are  held  to  act,  as  we  shall  presently  see 
more  at  large.  The  usages  of  trade  form  material  points 
in  determining  the  authority  of  an  agent ;  and  the  cus- 
tom of  an  individual  as  to  the  general  mode  and  scope 
of  his  dealings  with  tradesmen,  would,  as  we  have  seen, 
limit  the  implied  authority  of  his  servants  to  bind  him 
by  their  orders.  Wherever  acts  are  done  inconsistently 
with  express  directions  or.  with  the  customary  transac- 
tions from  which  agency  may  be  implied,  there  is  an 
excess  of  authority,  and  the  principal  is  not  bound. ^    In 

665,  s.  c.     See  Ilubbersly  v.  Ward,  22  L.  J.  (Ex.)  113  ;  8  Ex.  330  ;  Cole- 
man V.  Riches,  24  L,  J.  (C.  P.)  125  ;  16  C.  B.  (81  E.  C.  L.  R.)  104. 
[p)  Baines  v.  Ewing,  L.  R.  1  Ex.  320;  35  L.  J.  (Ex.)  194. 

'  And  therefore  it  has  been  held,  that  where  the  authority  purports  to 
have  been  derived  from  a  written  instrument,  or  the  agent  expressly 
signs  the  contract,  "  by  procuration,"  the  party  dealing  with  him  is  put 
upon  inquiry,  and  is  bound  to  examine  the  instrument:  Atwood  v.  Mun- 
nings,  7  B.  &  C.  (14  E.  C.  L.  R.)  278  ;  Witheringham  u.-IIerring,  5  Bing. 
(15  E.  C.  L.  R.)  442;  Schimmelpennich  v.  Bayard,  1  Pet.  264;  North 
River  Bank  v.  Aymar,  3  Hill  262. — r. 
27 


390  smith's  law  of  contracts. 

Flemyng  v.  Hector,  (§')  it  was  held,  on  similar  grounds, 
that  where  there  is  a  managing  committee  of  a  club  Avho 
choose  to  deal  on  credit  instead  of  for  ready  money  pay- 
ments, which  they  were  alone  authorized  by  the  members 
to  do,  the  members  are  not  bound  by  such  contracts. 

Many  cases  also  occur  where  there  is  no  such  con- 
structive or  express  authority  at  the  time  of  the  con- 
tract, but  where  it  has  been  supplied  by  the  subsequent 
assent  or  adoption  of  the  principal,  in  which  case  his 
liability  depends  upon  the  same  general  reason  as  before. 
The  subsequent  ratification  is  equivalent  to  a  prior  com- 
p..^oq-|-i   mand,  and  the  great  *maxim  of  agency,  ^^  Qui 
facit 2^er  alium  facit per  se"  has  a  retrospective 
effect.     And  such  ratification  may  be  inferred  from  the 
conduct  of  the  principal,  as  well  as  expressed  by  him  in 
words.     Thus,  Pollard,  having  sent  a  quantity  of  goods 
for  sale  to  Fernando  Po,  died  intestate.  After  his  death 
the  defendant  purchased  the  goods  from  the  agent  of  the 
intestate,  who  sold  them  for  the  benefit  of  the  estate. 
At  the  time  of  sale  no  administration  to  the  intestate 
had  been  granted.     Subsequently  the  plaintiff  took  out 
letters  of  administration.     The  Court,  after  first  laying 
it  down  that  the  title  of  an  administrator  relates  back 
to  the  death  of  the  intestate,  decided  that  the  plaintiff 
had,  by  suing,  ratified  the  sale  by  the  agent,  and  that  it 
was  no  objection  that  he  was  unknown  to  the  agent  at 
the  time  of  sale.(r)     But,  as  the  question  is,  whether 
the  principal  did  or  did  not  approve  of  the  transaction 
to  which  it  is  endeavored  to  make  him  a  party  through 
the  agency  of  another,  it  is  held  that  the  former  cannot 
ratify  a  part  of  the  transaction  and  repudiate  the  rest, 

(g)  2  M.  &  W.  172.  See  Cockerell  v.  Aucompte,  2  C.  B.  (N.  S.)  (89 
E.  C.  L.  K.)  440;  26  L.  J.  (C.  P.)  194. 

(r)  Foster  v.  Bates,  J2  M.  &  W.  226  ;  Lewis  v.  Read,  13  M.  &  AV.  834 ; 
Robinson  v.  Gleadow,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  156 ;  Freeman  v. 
Bosher,  13  Q.  B.  (66  E.  C.  L.  R.)  780. 


CONTRACTS   BY    AGENTS.  391 

but  must  adopt  the  whole  or  none.  (5)  But,  where  a 
person  at  the  time  of  doing  an  act  does  not  profess  to 
be  therein  acting  as  an  agent,  there  is  nothing,  strictly 
speaking,  to  ratify ;  and  another  person,  however  inter- 
ested, ^cannot  afterwards,  by  adopting  the  act,  r^qQ9-j 
make  the  former  his  agent,  and  thereby  incur 
any  liability  or  take  any  benefit  under  the  authorized 
act.  This  is  a  rule  of  considerable  importance,  and 
is  fully  explained  in  the  case  of  Wilson  v.  Tumman.(f) 
But  the  rule,  that  the  agent  acting  within  the  extent 
of  his  usual  employment  binds  his  principal,  though  in 
the  particular  case  the  agent  is  exceeding  his  authority, 
is  subject  to  the  observation,  that  the  person  who  con- 
tracts with  the  agent  has  not  notice  of  the  limitation  of 
his  authority.  It  is  very  right  that  a  stranger  who  sees 
an  agent  permitted  to  contract  generally  for  his  princi- 
pal in  this  or  that  business  should  be  safe  in  dealing  with 
him,  on  the  assumption  that  he  has  authority.  But  if 
he  Jmows  that  he  has  no  authority,  in  that  case  to  hold 
the  principal  bound  by  a  contract  made  contrary  to  the 
agent's  real  instructions,  would  be  to  give  effect  to  a 
fraud ;  and  accordingly,  wherever  the  person  who  con- 
tracts with  an  agent  Imoivs  that  that  agent's  authority 
is  limited,  and  nevertheless  contracts  with  him  beyond 
those  limits,  he  does  so  at  his  peril,  for  the  principal  is 
not  bound,  (^f)  And  on  this  account  it  is  wise  and  usual 
for  persons  who  have  been  in  the  habit  of  emplo3dng  a 
general  agent,  and  are  desirous  of  discontinu-  r:::OQo-i 
ing  him,  to  give  notice  to  the  world  of  their  in- 
tention in  the  Gazette,  and  to  those  persons  with  whom 
they  are  in  the  habit  of  dealing,  by  circulars,  (rr) 

(s)  Wilson  V.  Poulter,  2  Str.  859  ;  Brewer  v.  Sparrow,  7  B.  k  C.  (14 
E.  C.  L.  R.)  310. 

{t)  6  M.  &  Gr.  (46  E.  C.  L.  R.)  236;  Anon.,  Godbolt  109. 
\u)  See  Trueman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  589. 
(a;)  See  Smith's  Merc.  Law,  6th  ed.  158. 


394  smith's  law  of  contracts. 


[*394]  *LECTURE  X. 

PRINCIPAL    AND    AGENT. THEIR    RESPECTIVE     LIABILITIES.— 

AGENCY  OF  BROKERS,  FACTORS,  PARTNERS,  WIVES. RE- 
CAPITULATION.  REMEDIES  BY  ACTION. STATUTES  OF  LIMI- 
TATION. 

Pursuing  the  consideration  of  the  points  arising  upon 
contracts  made  through  the  medium  of  agents,  and 
having  disposed  of  most  of  those  which  relate  to  the  lia- 
bility of  the  principal  upon  them,  the  next  in  order  is 
that  which  regards  his  power  to  take  advantage  of  them. 
Now,  where  the  agent,  («)  when  he  makes  the  contract, 
states  who  his  principal  is,  and  states  that  he  is  con- 
tracting on  the  behalf  of  that  principal;  or  where 
(though  there  may  be  no  express  statement  to  that 
effect)  the  circumstances  of  the  transaction  can  be  shown 
to  have  been  so  completely  within  the  knowledge  of  the 
parties  to  it  that  there  can  be  no  doubt  that  it  was 
understood  at  the  time  that  the  person  who  actually 
made  the  contract  made  it  as  an  agent,  and  intended  to 
make  it  on  behalf^ of  his  principal;  in  such  cases  there 
can  of  course  be  no  doubt  of  the  principal's  right  to  take 
advantage  of  it,  and  enforce  it  to  the  fullest  extent.  It 
p.j.oqr-]  is,  in  *truth,  as  if  he.  had  put  his  own  hand  to 
it.  In  such  cases,  therefore,  there  can  be  no 
difficulty.  But  the  cases  in  which  difficulties  arise  are 
those  in  which  the  agent,  being  really  only  the  substi- 
tute for  another,  nevertheless  contracts  in  his  own  name 
as  if  he  were  himself  the  principal.^ 

(a)  Seignior  v.  Wolmer,  Godb.  360. 
»  George  v.  Clagett,  7  T.  R.  359 ;  Purchell  v.  Salter,  1  Q.  B.  (41  E.  C. 


CONTRACTS    BY    AGENTS.  395 

Now,  in  such  a  case,  the  principal  may  adopt  and  en- 
force the  contract,  (J)  but  his  right  to  do  so  is  subject  to 
a  qualification  which  has  been  dictated  by  common  sense 
and  public  convenience,  namely,  that,  on  declaring  him- 
self, he  stands  in  the  place  of  the  agent  who  made  it; 
so  that  the  other  contracting  party  enjoys  the  same 
rights  against  him  which  he  would  have  enjoyed  against 
the  agent  who  made  it,  had  that  agent  really  been  the 
principal.  For  instance,  if  I  buy  a  parcel  of  goods  from 
A.,  who  sells  them  to  me  in  his  own  name,  though  he 
is  really  only  the  factor  of  B.,  whose  property  the  goods 
are,  B.  may,  if  he  think  proper,  declare  himself  the 
principal,  and  require  me  to  pay  the  price  to  him;  but 
if  the  factor  owed  me  money  which  I  could  have  set  off 
against  the  price  had  the  factor  sued  me  for  it,  I  have 
the  right  of  setting  it  off  against  B.,  in  like  manner  as  I 
might  have  done  against  the  factor.  And  the  good 
sense  and  justice  of  this  is  obvious;  for  it  may  be  ex- 
ceedingly inconvenient,  indeed  ruinous  to  me,  to  pay  in 

{b)  Cooke  V.  Seeley,  17  L.  J.  (Ex.)  286;  2  Ex.  746,  s.  c. ;  Spun-  t\ 
Cass,  L.  R.  5  Q.  B.  656 ;  39  L.  J.  (Q.  B.)  249. 

L.  R.)  197  ;  Sims  v.  Bond,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  393  ;  Lime  Rock 
Bank  v.  Plimpton,  17  Pick.  159  ;  Leeds  v.  Marine  Ins.  Co.,  6  Wheat. 
570  ;  Yiolett  v.  Powell,  10  B.  Mon.  347  ;  Parker  v.  Donaldson,  2  W.  it 
8.21. 

As  the  lecturer  has  elsewhere  expi'essed  it,,"  in  evei'v  case  in  which 
the  agent  sues  in  his  own  name,  two  consequences,  it  must  be  remem- 
bered, follow :  1.  That  the  defendant  may  avail  himself  of  those  defences 
which  would  be  good  as  against  the  agent  who  is  the  plaintiff  on  the 
record:  Gibson  v.  Winter,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  96;  Wilkinson 
V.  Lindo,  8  M.  &  Wels.  83.  2.  That  he  may  avail  himself  of  those  which 
would  be  good  as  against  the  principal,  for  whose  use  the  action  is  brought : 
Welstead  v.  Levy,  1  M.  &  Rob.  138  :  Megginson  v.  Harper,  4  Tyr.  94; 
Rex  V.  Hardwicke,  1 1  East  578 ;  Harrison  v.  Vallance,  1  Bing.  (8  E.  C. 
L.  R.)  45;  Smith  v.  Lyon,  3  Campb.  465."  Note  to  Thompson  v.  Daven- 
port, 2  Smith's  Lead.  Cas.  317.— R. 

Huntington  v.  Knox,  7  Cush.  371  ;  Doe  v.  Thompson,  2  Fost.  217. 


896 


SMITH  S    LAW    OF    CONTRACTS. 


P=396] 


hard  cash;  and  my  knowledge  that  I  should 


*have  this  set-off  may  have  been  my  only  m- 
ducement  to  buy ;  and  if  I  were  deprived  of  it,  I  should 
be  led  into  a  trap — induced  to  purchase  upon  one  ground 
and  forced  to  pay  upon  a  different  one. 

The  general  rule,  that  a  principal  may  declare  himself, 
and  take  advantage  of  his  agent's  contract  made  without 
naming  him,  and  this  qualification  of  it  (to  prevent  the 
injustice  of  which  it  might  otherwise  be  made  the  in- 
strument), are  both  very  clearly  laid  down  in  the  judg- 
ment in  Sims  v.  Bond:(c) — "It  is  a  well-established 
rule  of  law,"  said  the  L.  C.  Justice,  delivering  the  judg- 
ment of  the  Court  in  that  case,  "  that  where  a  contract 
7iot  under  seal  is  made  by  an  agent  in  his  own  name  for 
an  undisclosed  principal,  either  the  agent  or  the  princi- 
pal may  sue  upon  it^ — the  defendant  in  the  latter  case, 
being  entitled  to  be  placed  in  the  same  situation  at  the 
time  of  the  disclosure  as  if  the  agent  had  been  the  con- 
tracting party."^  This  rule  is  most  frequently  acted 
upon  in  sales  by  factors,  agents,  or  j)artners,  in  which 
cases  either  the  nominal  or  the  real  contractor  may  sue, 
but  it  may  be  equally  applied  to  other  cases.     Thus,  in 

(c)  5  B.  &  Ad.  (27  E.  C.  L.  R.)  393  ;  Raniazotti  v.  Bowering,  29  L.  -J. 
(Ch.)  30. 

•  Unless,  indeed,  the  defendant  relied  on  the  plaintiff's  character  as 
agent,  and  would  not  have  contracted  with  him  as  a  principal  if  he  had 
known  him  so  to  be  :  Schmalz  v.  Avery,  3  Eng.  L.  &  Eq.  Rep.  391. — r. 

^  If,  however,  the  defendant  either  knew,  or  had  the  reasonable  means 
of  knowing  that  he  was  dealing,  not  with  an  agent,  but  with  a  principal, 
the  latter  part  of  the  rule,  as  thus  expressed,  obviously  loses  its  applica- 
tion :  Baring  v.  Corrie,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  137 ;  so,  if  the  pur- 
chaser knew  that  the  seller  was  not  the  owner  of  the  goods,  but  a 
factor — in  such  case,  he  can  have  no  set-off  against  the  latter,  whether 
the  suit  be  brought  in  the  name  of  the  principal  or  in  his  own  name: 
Parker  v.  Donaldson,  2  W.  &  S.  9  ;  for  in  neither  of  these  cases  is  the 
purchaser  deceived. — r. 


CONTRACTS    BY    AGENTS.  396 

George  v.  C]agett,(^)^  the  case  was  this:  the  plaintiff, a 
clothier,  employed  Rich  and  Heapy  as  his  factors,  who 
besides  acting  as  factors,  bought  and  sold  great  quanti- 
ties of  woollen  cloths  on  their  own  ^account,  r:;:9q7-| 
and  carried  on  all  their  business  at  one  ware- 
house. Rich  and  Heapy  became  largely  indebted  to 
the  defendants  on  a  bill  of  exchange,  and  afterwards 
the  latter  purchased  woollen  cloths  of  them  to  an 
amount  greater  than  the  debt  on  the  bill.  Part  of  the 
cloths  really  belonged  to  the  plaintiff,  but  the  defendants 
did  not  know  it,  and  on  his  suing  the  defendants  for  the 
price  of  his  cloth  so  bought  by  them  from  Rich  and 
Heapy,  the  defendants  were  considered  to  be  entitled 
to  set  off  the  debt  of  Rich  and  Heapy  to  them.  "By 
the  statute  of  set-off," (e)  said  Holroyd,  J.,  in  the  very 
similar  case  of  Carr  z^.  Hinchlifr,(/)  "when  there  are 
mutual  debts  between  a  plaintiff  and  a  defendant,  the 
latter  may  set  off  the  debt  due  to  him  against  that 
whicli  is  claimed.  The  statute  gives  him  a  right  to  say, 
that  the  debt  claimed  is  paid  by  that  which  is  due  to 
him,  and  that  it  operates  as  an  extinguishment  of  the 
debt.  And  now,  by  analogy  to  the  defence  given  by 
the  statute,  a  defendant  is  also  entitled  to  say  that  his 
debt  is  extinguished  by  another  debt  due  to  him  from 
any  person  who  may  be  identified  with  the  plaintiff." 
Even  where  the  defendants  were  aware  that  they  were 
dealing  with  an  agent,  a  factor,  but  the  latter  was  accus- 
tomed to  sell  in  his  own  name  when  he  had  any  claim 
against  the  owner  of  the  goods  for  advances,  and  the 

(d)1T.  R.  359  ;  2  Smith's  L.  C. ;  Isberg  v.  Bowden,  22  L.  J.  (Ex.)  322  5 
8  Ex.  852. 

[e)  2  Geo.  II.  c.  22. 

(/)  4  B.  &  C.  (10  E.  C.  L.  R.)  553. 

'  And  see  the  note  to  that  case  in  2  Smith's  Lead.  Cas.  161. — r. 


398  smith's  law  of  contracts. 

p.^oqo-]  purchaser,  in  buying  *the  goods  in  question, 
hond  fide  believed  that  the  factor  sold  them  for 
the  purpose  of  satisfying  such  a  claim,  it  was  decided 
that  the  purchaser  was  entitled  to  set  off  the  payments 
made  by  him  to  the  factor.  This  was  the  case  of 
Warner  v.  M'Kay,(^)  where  the  Court  treated  the  ques- 
tion as  being,  whether  the  defendant  had  a  right  to  con- 
sider that  he  had  paid  the  factors  for  those  goods.  The 
only  doubt  arose  from  the  defendant  being  apprised  that 
the  goods  belonged  to  the  plaintiffs.  But  as  the  factors 
were  accustomed  to  sell  in  their  own  names,  and  did 
sell  these  goods  in  their  own  names,  and  the  jury  having 
found  that  the  defendant  believed  that  they  had  author- 
ity to  sell,  and  was  not  bound  to  inquire  further,  the 
Court  supported  a  verdict  for  the  defendant.  But  if 
the  purchaser  knew  all  along  that  he  was  dealing  with 
an  agent,  he  cannot  set  off,  in  an  action  by  the  princi- 
pal for  the  price  of  goods  bought  by  him  of  the  agent, 
a  debt  due  from  the  agent  to  himself;  for  that  would  be 
treating  the  agent  and  the  principal  as  one,  where  they 
are  not  identified,  and  creating  instead  of  preventing  the 
injustice  which  the  law  thus  seeks,  by  allowing  a  set-oflf 
p.j.oqQ-|  of  this  kind,  to  prevent.  (A)  The  real  *grounds 
on  which  the  before-mentioned  cases  have  been 
decided,  was  stated  by  the  Court  of  Exchequer,  in 
Isberg  V.  Bowden,(z)  to  be  "that  when  a  principal  per- 
mits an  agent  to  sell  as  apparent  principal,  and  after- 
wards intervenes,  the  buyer  is  entitled  to  be  placed  in 
the  same  situation  at  the  time  .of  the  disclosure  of  the 

{^)  1  M.  &  W.  591.  See,  however,  the  remarks  on  this  case  in  Fish  v. 
Keinpton,  7  C  B.  (62  E.  C.  L.  R.)  687. 

(/i)  Fish  V.  Kempton,  7  C.  B.  (62  E.  C.  L.  R.)  687  ;  Dresser  v.  Nor- 
wood, 34  L.  J.  (C.  P.)  48,  Ex.  Ch. ;  Semenza  v.  Brinsley,  34  L.  J.  (C. 
P.)  161. 

[i)  8  Ex.  852. 


CONTRACTS    BY    AGENTS.  399 

real  principal  as  if  the  agent  had  been  the  real  con- 
tracting party,  and  is  entitled  to  the  same  defence, 
whether  it  be  by  common  law  or  by  statute,  by  pay- 
ment or  by  set-off,  as  he  was  entitled  to  at  that  time 
against  the  agent,  the  apparent  principal."  The  princi- 
ple, however,  of  George  v.  Clagett  applies  only  to  what 
may  be  said  to  be  the  proximate  motive  of  dealing  with 
the  factor.  Thus,  in  the  event  of  the  latter's  bank- 
ruptcy, the  defendant  will  not  be  allowed  to  set-off 
against  the  principal's  claim,  all  claims  arising  out  of 
mutual  dealings  of  which  defendant  might  have  availed 
himself,  under  ss.  31,  39,  of  32  &  33  Vict.  c.  71  (Bank- 
ruptcy Act,  1869).  The  contingency  of  the  bankruptcy 
and  the  mode  of  settling  accounts  with  the  assignees 
cannot  be  considered  to  have  been  contemplated  when 
the  contract  was  made  with  the  agent.  (A")  It  seems 
sufficiently  connected  with  these  propositions,  to  add 
here,  that  where  the  principal  does  not  intervene,  but 
allows  the  agent  to  sue  in  his  own  name,  '-'two  pM  aa-i 
consequences  follow:  1st,  that  the  defendant 
may  avail  himself  of  all  defences  which  would  be  good 
against  the  agent,  who  is  by  the  su^^position  the  plain- 
tiff on  the  record; (/)  2dly,  that  he  may  avail  himself  of 
those  which  would  be  good  against  the  principal  for 
whose  sole  use  the  action  has  been  brought,  (m) 

Before  leaving  this  subject,  I  will  say  one  word  with 
regard  to  the  situation  of  an  agent  who  contracts  in  the 
manner  I  have  just  mentioned,  without  naming  his 
principal.  It  is  settled  that,  in  such  a  case,  the  other 
contracting  party  may,  when  he  discovers  the  true  state 

(/f)  Turner  v.  Thomas,  L.  R.  6  C.  P.  610  ;  40  L.  J.  (C.  P.)  271. 

[1)  Gibson  v.  Winter,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  96  ;  Wilkinson  v. 
Lindo,  7  M.  &W.  81. 

(m)  May  v.  Taylor,  6  M.  &  Gr.  (46  E.  C.  L.  R.)  261  :  Meggiuson  v. 
Harper,  2  Cr.  &  M.  322. 


400  smith's  law  of  contracts. 

of  facts,  elect  to  charge  either  him  or  his  principal,  (w) 
whichever  he  may  think  most  for  his  advantage.  Thus, 
in  Paterson  v.  Gandasequi,(o)  the  defendant,  who  was 
a  Spanish  merchant,  employed  Larrazabal  to  purchase 
for  him  various  assortments  of  goods  for  the  foreign 
r*4mi  *^^^'ket,  for  which  he  was  to  charge  a  commis- 
sion of  2  per  cent.  Larrazabal  applied  to  the 
•plaintiffs,  and  requested  them  to  send  to  his  counting- 
house  an  assortment  of  the  goods,  with  terms  and 
prices.  Paterson  brought  patterns  of  the  goods  to  the 
counting-house,  with  the  terms  and  prices,  when  Gan- 
dasequi  was  present.  The  samples  were  handed  to 
him.  He  inspected  them,  selected  such  as  he  required, 
and  the  terms  and  prices  were  shown  to  him,  and  left 
there;  subsequently  Larrazabal,  in  pursuance  of  direc- 
tions from  Gandasequi,  ordered  the  goods  from  Paterson. 
The  latter  sold  the  goods  on  the  credit  of  Larrazabal, 
made  out  the  invoices  in  his  name,  and  sent  them  to 
him,  and  Larrazabal  debited  the  amount  to  Gandasequi. 
"  The  law,"  said  Lord  Ellenborough,  "  has  been  settled 
by  a  variety  of  cases,  that  an  unknown  principal,  when 
discovered,  is  liable  on  the  contracts  which  his  agent 
makes  for  him."  On  the  other  hand,  if  the  agent  con- 
tract without  naming  any  principal,  he  is  himself  the 
person  prima  facie  responsible ;  and  though  the  other 
party  may,  in  most  cases,  elect  to  charge  the  employer 

(ji)  The  creditor  has  an  election  to  sue  either  the  one  or  the  other  ; 
but  he  cannot  after  he  has  sued  the  one  to  judgment,  maintain  a  second 
action  against  the  other:  Priestly  v.  Fernie,  34  L.  J.  (Ex.)  172;  3  H.  & 
C. 977.  ^ 

(o)  15  East  62  -,  see  also  Waring  v.  Favenck,  1  Camp.  85 ;  Kymer  v. 
Suwercropp,  1  Camp.  109;  Heald  v.  Kenworthy,  24  L.  J.  (Ex.)  76;  10 
Exch.  739  ;  Smethurst  v.  Mitchell,  28  L.  J.  (Q.  B.)  241 ;  Risbourg  v. 
Bruckner,  27  L.  J.  (C.  P.)  90  ;  3  C.  B.  (N.  S.)  (91  E.  C.  L.  R.)  812; 
Greene  v.  Koptree,  25  L.  J.  (C.  P.)  297  ;  18  C.  B.  (86  E.  C.  L.  R.)  549 ; 
Calder  v.  Dobell,  L.  R,  6  C.  P.  486 ;  40  L.  J.  (C.  P.)  89,  224. 


CONTRACTS    BY    AGENTS.  401 

on  discovering  him,  yet  he  need  not  do  so,  but  may,  if 

he  please,  continue  to  look  to  the  agent.  (/>)     He  may 

also  elect  to  charge  either  the  agent  or  his  principal, 

where  the  aaent,  at  the  time  of  makinpr '^the    ^.,^^_, 

.     .  [4021 

contract,  says  that  he  has  a  principal,  but  de-    ^         -^ 

clines  to  say  who  that  principal  is(^)A^    It  is  important 

{p)  Morgan  v.  Corder,  Paley  Prin.  and  Agent,  3d  ed.,  p.  372 :  Smith's 
Merc.  Law,  by  Dowdeswell,  6th  ed.,  p.  168,  &c. ;  Paterson  v.  Ganda- 
sequi,  supra. 

iq)  Thomson  v.  Davenport,  9  B.  &  C.  (17  E.  C.  L.  R.)  78  ;  Cooke  v. 
Wilson,  26  L.  J.  (C.  P.)  15 ;  1  C.  B.  (N.  S.)  (87  E.  C.  L.  R.)  153. 

(a)  The  right  to  sue  the  principal  -when  disclosed  does  not  apply  to 
bills  of  exchange  accepted  or  indorsed  by  the  agent  in  his  own  name 
alone,  and  not  per  j)roc.,  for  by  the  law  of  merchants,  a  chose  in  action 
is  passed  by  indorsement,  and  each  party  who  receives  the  bill  is  making 
a  contract  with  the  parties  upon  the  face  of  it,  and  with  no  other  party 
whatever.  See  Beckham  v.  Drake,  9  M.  &  W.  92,  per  Lord  Abinger,  C. 
B.     [Bank  of  Hamburg  v.  Wray,  4  Strobh.  57.] 

^  Bacon  v.  Smedley,  3  Strobh.  542 ;  Perth  Amboy  Manufacturing  Co. 
V.  Condit,  1  Zabr.  (N.  J.)  659,  unless  the  circumstances  attending  the 
contract  are  such  as  to  show  an  intention  to  look  solely  to  the  one  and 
not  to  the  other.  If  the  vendor,  knowing  of  the  principal,  still  ci'edits 
and  looks  to  the  agent  as  the  responsible  party,  he  of  course  exonerates 
the  principal :  Page  v.  Stone,  10  Mete.  160 ;  Jones  v.  Alton  Ins.  Co.,  14 
Conn.  301  ;  Ahrens  v.  Cobb,  9  Humph.  543  ;  Violet  v.  Powell,  10  B.  Mon. 
347  ;  Bate  v.  Burr,  4  Harring.  130  ;  and  this,  whether  the  latter  has  or 
has  not  received  the  property  :  Ahrens  v.  Cobb.  But  it  is  obvious,  that 
the  mere  fact  of  charging  the  goods  to  the  ag.ent,  should  not  raise  a  pre- 
sumption that  the  vendor  thereby  meant  to  rely  solely  on  the  latter,  un- 
less the  name,  and  perhaps  also  the  situation  and  circumstances,  of  the 
principal  be  also  known  to  the  vendor,  for  certainly  unless  he  knew  the 
na7ne  of  the  principal,  there  can  be  no  opportunity  of  electing  between 
him  and  the  agent :  Lapham  v.  Green,  9  Verm.  406  ;  Edwards  v.  Gold- 
ing,  20  Ibid.  30  ;  Henderson  v.  Mayhew,  2  Gill  393  ;  and  it  would  seem 
that  unless  he  knew,  also,  something  of  his  circumstances,  the  case  would 
be  the  same :  Raymond  v.  The  Crown  and  Eagle  Mills,  2  Met.  319  ;  Up- 
ton V.  Gray,  2  Greenl.  374.  See  the  note  to  Thomson  v.  Davenport,  2 
Smith's  Lead.  Cas.  (4th  ed.),  317,  318.— r. 

Brown  v.  Rundlett,  15  N.  H.  360  ;  Hovey  v.  Pitcher,  13  Mo.  191 ;  Hyde 
V.  Paige,  9  Barb.  150  ;  Johnson  v.  Smith,  21  Conn.  627  ;  Ogden  v.  Ray- 
mond, 22  Ibid.  379 ;  Sydnor  v.  Hurd,  8  Tex.  98.     In  simple  contracts,  if 


402  smith's  law  of  contracts. 

to  bear  in  mind  the  rule,  that  this  election,  when  once 
made,  is  binding.  This  is  the  main  point  which  is  illus- 
trated by  the  case  of  Paterson  v.  Gandasequi,  already 
cited,  when,  under  the  facts  before  described,  the  Court 
laid  down,  that  if  the  seller  of  goods,  knowing,  at  the 
time  of  making  the  contract  of  sale,  that  the  buyer, 
although  dealing  with  him  in  his  own  name,  is  in  reality 
the  agent  of  another,  elect  to  give  credit  to  the  agent, 
he  cannot  afterwards  recover  the  value  from  the  known 
principal.  In  the  subsequent  but  almost  contemporary 
case  of  Addison  v.  Gandasequi,  (r)  the  latter,  who  had 
acted  towards  the  plaintiff  in  a  similar  manner  to  that 
described  in  noticing  the  case  of  Paterson  v.  Gandasequi, 
was  held  not  to  be  liable,  Addison  having,  with  full 
knowledge  of  the  facts,  debited  Larrazabal  in  his  books. 
In  both  these  cases  there  was  evidence  that  the  vendor 
had  elected  to  look  to  the  agent  for  payment,  knowing, 
at  the  time  of  the  contract,  that  another  person  was  the 
principal,  and  also  knowing  who  that  principal  was  ;  but 
in  Paterson  v.  Gandasequi,  there  being  some  doubt  how 
far  the  plaintiff  had  a  perfect  knowledge  of  the  fact  that 
P40S1  '^^  defendant  was  the  principal  at  the  *time  of 
the  contract,  the  Court  granted  a  new  trial. 
There  was  no  such  doubt  in  Addison  v.  Gandasequi.    In 

(r)  4  Taunt.  573. 

the  agent  does  not  disclose  his  agency,  he  binds  himself,  and  so  if  he 
exceeds  his  authority :  Rogei's  v.  Allen,  2  Wms.  234 ;  Hodges  v.  Green, 
Ibid.  258  ;  Forney  v.  Shipp,  4  Jones  (Law)  527  ;  McClellan  v.  Parker, 
27  Mo.  162;  Murray  v.  Carothers,  1  Mete.  (Ky.)  71.  A  written  agree- 
ment signed  "A.  B.  by  C.  D.  agent,"  does  not  bind  the  agent  personally, 
although  the  principal  resides  beyond  seas :  Bray  v,  Kettell,  1  Allen  80. 
When  a  person  proposes  to  act  as  an  agent,  disclosing  the  name  of  his 
principal,  he  assumes  no  personal  responsibility,  unless  he  acts  fraudu- 
lently :  Seevy  v.  Socks,  29  111.  313;  Baker  v.  Chambles,  4  Greener  428. 
A  party  who  signed  notes  as  president  of  a  bank  which  has  no  legal  ex- 
istence is  personally  liable  on  them :  Allen  v.  Pegram,  10  Iowa  163. 


CONTRACTS    BY    AGENTS.  403 

the  more  recent  case  of  Thomson  v.  Davenport,  one 
M'Kune  having  received  an  order  from  Davenport  for 
the  purchase  of  goods,  ordered  them  from  Thomson,  the 
plaintiff,  letting  him  know  that  they  were  for  his  em- 
ployer, but  not  mentioning  the  name  of  any  principal. 
The  plaintiff  named  M'Kune  as  purchaser  in  the  invoice 
of  the  goods  :  the  Court  considered  that  the  plaintiff, 
having  treated  M'Kune  as  his  debtor,  whilst  ignorant 
of  the  real  purchaser,  was  not  bound  by  that  election, 
but  might  afterwards  sue  the  principal  for  the  price. 
"  I  take  it  to  be  a  general  rule,"  said  Lord  Tenterden, 
"  that  if  a  person  sells  goods,  supposing  at  the  time  of 
the  contract  that  he  is  dealing  with  the  principal,  but 
afterwards  discovers  that  the  person  with  whom  he  has 
been  dealing  is  not  the  principal  in  the  transaction,  but 
agent  for  a  third  person,  though  he  may  in  the  meantime 
have  debited  the  agent  with  it,  he  may  afterwards  re- 
cover the  amount  from  the  real  principal,  subject,  hoiu- 
ever,  to  this  qualification,  that  the  state  of  the  account 
I)ettveen  the  principal  and  the  agent  is  not  altered  to  the 
prejudice  of  the  principal.     On  the  other  hand,  if,  at  the 
time  of  the  sale,  the  seller  knows,  not  only  that  the 
person  who  is  nominally  dealing  with  him  is  not  princi- 
pal but  agent,  and  also  knows  who  the  principal  really 
is,  and  notwithstanding  all  that  knowledge,  deals  with 
him,  and  *him  alone,  then  the  seller   cannot 
afterwards,  on  the  failure  of  the  agent,  turn    ■-         ^ 
round  and  charge  the  principal,  having  once  made  his 
election  at  the  time  when  he  had  the  power  of  clioosing 
between  the  one  and  the  other.    The  present  is  a  middle 
case ;  at  the  time  of  the  dealing  for  the  goods  the  plain- 
tiffs were  informed  that  M'Kune,  who  came  to  buy  the 
goods,  was  dealing  for  another,  that  is,  that  he  was  an 
agent ;  but  they  were  not  informed  who  the  principal 


404  smith's  law  of  contracts. 

was.  Tliey  had  not,  therefore,  at  that  time,  the  mean? 
of  making  their  election.  It  is  true,  that  they  might 
perhaps  have  obtained  those  means  if  they  had  made 
further  inquiry ;  but  they  made  no  further  inquiry. 
Not  knowing  "who  the  principal  really  was,  they  had- 
not  the  power  at  that  instant  of  making  their  election ; 
that  being  so,  it  seems  to  me  that  this  middle  case  falls, 
in  substance  and  effect,  within  the  first  proposition  that 
I  have  mentioned,  the  case  of  a  person  not  known  to  be 
an  agent,  and  not  within  the  second,  where  the  buyer  is 
not  merely  known  to  be  an  agent,  but  the  name  of  his 
principal  is  also  known.  There  may  be  another  case, 
and  that  is,  where  a  British  merchant  is  buying  for  a 
foreigner.  According  to  the  universal  understanding  of 
merchants  and  of  all  persons  in  trade,  the  credit  is  then 
considered  to  be  given  to  the  British  buyer,  and  not  to 
r^A(\r-i  the  foreigner," (.s)  although,  of  course,  a  contract 
may  *be  made  by  the  agent  so  as  to  charge  the 
foreigner  and  not  himself  {t)  Indeed,  it  hardly  requires 
mentioning,  that  the  question,  which  is  liable — the 
foreign  principal  or  the  English  agent — is  one  of 
intention,  (m)  in  which  the  fact,  that  the  principal 
debtor  is  a  foreigner  residing  abroad,  renders  it  highly 
improbable  that  the  credit  should  have  been  given  to 
him.(i?;) 

But  there  is   this  qualification  to  the  right  of  elec- 

(s)  See  Wilson  v.  Zulueta,  19  L.  J.  (Q.  B.)  49 ;  14  Q.  B.  (68  E.  C.  L. 
R.)  405,  s.  c. ;  Armstrong  v.  Stokes,  L.  R,  7  Q.  B.,  at  p.  605,  41  L.  J.  Q,. 
B.,  at  p.  257  ;  Elbinger  Actien-Gesellschaft  v.  Claye,  L.  R.  8  Q.  B.  813, 
42  L.  J.  (Q.  B.)  151  ;  Hutton  v.  Bullock,  L.  R.  8  Q.  B.  331. 

{t)  Mahony  v.  Kekule,  23  L.  J.  (C.  P.)  54  -,  14  C.  B.  (78  E.  C.  L.  R.) 
390,  s.  c. 

[u)  Green  v.  Koptree,  25  L,  J.  (Ch.)  297 ;  Deslaudes  v.  Gregory,  29  L. 
J.  (Q.  B.)  93 ;  s.  c.  in  Ex.  Ch.,  30  L.  J.  (Q.  B.)  36. 

{x)  Leonard  v.  Robinson,  24  L.  J.  (Q.  B.)  275  ;  5  E.  &  B.  (85  E.  C.  L. 
R.)  125. 


CONTRACTS    BY   AGENTS.  405 

tion,(j/)  namely,  that  if  the  state  of  accounts  between 
the  agent  and  principal  have  been  altered,  so  that  the 
principal  would  be  [unjustly]  subjected  to  a  loss  by  the 
other  contracting  party's  election,  the  right  of  election 
is  in  sijch  case  lost.  Suppose,  for  instance,  I  employ 
A.  to  purchase  goods,  and  he  purchases  them  from  B.  in 
his  own  name ;  now  B.,  when  he  discovers  me  to  be  the 
real  principal,  may  elect  whether  he  will  treat  me  or  my 
agent  A.  as  his  debtor ;  but  if,  in  the  meantime,  I  have 
paid  A.  [under  circumstances  which  would  make  it  un- 
just for  B.  to  treat  me  as  still  his  debtor,  (0)]  r^Aoc>^ 
*he  will  lose  that  right,  since  otherwise  I  should 
have  to  pay  the  price  twice  over.  Still,'  this  qualifica- 
tion is  itself  subject  to  a  minor  one,  namely,  that  the 
principal  cannot,  by  prematurely  and  improperly  settling 
with  his  agent,  deprive  the  other  contracting  party  of 
his  right  of  election.  Suppose,  for  instance,  as  in  the 
case  I  have  just  put,  that  I  employ  A.  to  purchase 
goods,  not  for  ready  money,  but  at  three  months'  credit. 
A.  purchases  in  his  own  name  from  B.,  B.,  before  the 
three  months  have  elapsed,  discovers  the  true  state  of 
affairs,  and  elects  to  take  me  as  his  debtor.  I  should 
not  be  allowed  to  say,  in  this  case,  "You  are  too  late; 
I  have  settled  with  A.,  my  agent."  The  answer  would 
be,  "  You  had  no  occasion  to  do  so  pending  the  time  of 
credit ;  and  you  cannot,  by  doing  so,  deprive  B.  of  his 
right  to  elect  you  as  his  debtor."  («) a 

(?/)  As  already  mentioned  in  the  judgment  of  Lord  Tenterden,  just 
quoted. 

(2)  See  Ileald  v.  Kenworthy,  10  Ex.  739;  24  L.  J.  (Ex.)  76;  Arm- 
strong V  Stokes,  L.  R.  7  Q.  B.  598,  41  L.  J.  (Q.  B.)  253. 

(a)  Thomson  v.  Davenport,  supra;  and  Kymer  v.  Suwercropp,  1 
Camp.  109. 

(a)  The  cases  in  which  an  agent  is  personally  liable,  and  may  be  sued 
on  the  contract  he  makes,  may  be  thus  classed : — 


406  smith's  law  of  contracts. 

In   the  case   of  Kymer  v.  Suwercropp,  Lord  Ellen- 
borough  said,  "  A  person  selling  goods  is  not  confined  to 

In  the  first  place,  he  is  liable,  according  to  the  doctrine  in  Thomson  v. 
Davenport,  where  the  principal  was  not  disclosed  at  the  time  of  the 
contract ;  but  if  he  were  known,  and  credit  were  given  to  him  at  the 
time,  the  agent  cannot  be  afterward?  sued,  provided  he  acted  within  the 
scope  of  his  authority:  Patton  v.  Brittain,  10  Ired.  8. 

In  the  second  place,  the  agent  is  liable,  as  we  have  already  staled, 
where  he  exceeds  his  authority,  or  represents  himself  to  have  an  authority 
which  he  has  not,  the  want  of  authority  being  unknown  to  the  other 
party:  Jones  v.  Downman,  4  Q.  B.  (45  E.  C.  L.  R.)  235;  [Dusenbui-y 
V.  Ellis,  3  Johns.  Cas.  70  ;  Meech  v.  Smith,  7  "Wend.  315  ;  Woodes  v. 
Dermett,  9  N.  H.  55  ;]  for  in  such  cases  the  creditor  has  no  remedy 
against  the  principal :  AVilson  v.  Barthrop,  2  M.  &  W.  863.^  Here  again, 
however,  arises  a  question,  as  we  have  seen,  how  far  Smout  v.  Ibery 
[supra)  is  good  law,  and  that  the  agent  is  to  be  held  liable  where  it  can- 
not be  proved  that  he  fraudulently  misrepresented  his  authority.  But 
that  case  clearly  decides  another  very  important  point,  namely,  that 
where  a  man  has  been  in  the  habit  of  dealing  with  the  plaintiif  for 
household  goods,  the  wife  is  not  liable  for'  such  as  are  supplied  to  her 
after  his  death,  but  before  information  of  his  death  had  been  received, 
shf.i  having  had  originally  full  authority  to  contract,  and  done  no  wrong- 
in  representing  her  authority'  as  continuing,  nor  omitted  to  state  any 
fact  within  her  knowledge,  relating  to  it ;  the  revocation  itself  being  by 
the  act  of  God,  and  the  continuance  of  the  life  of  the  principal  being 
equally  within  the  knowledge  of  both  parties. 

In  the  third  place,  an  agent  is  liable  for  himself  and  his  heirs  under 
seal,  for  the  act  of  the  principal,  though  he  describe  himself  in  the  deed 
as  covenanting  for  and  on  behalf  of  such  other  person :  Hancock  v. 
Hodgson,  4  Bing.  (13  E.  C.  L.  R.)  269  ;  Appleton  v.  Binks,  5  East 
148.2  ^ 

'  Hampton  v.  Speckenagle,  9  S.  &  R.  212,  unless,  of  course,  the  prin- 
cipal should  have  subsequently  ratified  the  agent's  act:  Bragg  tJ.  Fes- 
senden,  11  111.  544;  Fitzsimmons  v.  Joslin,  21  Verm.  199;  but  such 
ratification  by  the  principal  must  be  shown  to  have  been  made  with  a 
full  knowledge  of  the  facts,  and  an  understanding  that  he  would  not 
be  liable  unless  he  did  so  ratify  :  Fletcher  v.  Dysant,  9  B.  Mon.  413. — r. 

-  Burrell  v.  Jones,  2  B.  &  Aid.  47  ;  Summer  v.  Williams,  8  Mass.  162 ; 
Belden  v.  Seymour,  8  Conn.  24  ;  White  v.  Dewey,  15  Pick.  433  ;  Dono- 
liue  V.  Emory,  9  Mete.  66  ;  Mason  v.  Caldwell,  5  Gil.  196.  It  has,  how- 
ever, been  held,  in  a  few  cases,  that  where  a  person  expressly  covenants 
in  his  representative  capacity,  ''  and  not  otherwise,"  he  will  not  be  per- 


CONTRACTS    BY    AGENTS.  406 

the  credit  of  a  broker  who  buys  them,  but  may  resort 
to  the  principal  on  whose  account  they  are  bought;  and 
he  is  no  more  affected  by  the  state  of  accounts  between 
the  two  than  I  should  be  were  I  to  deliver  goods  to  a 

An  agent  is  liable  in  the  fourth  place,  where  he  contracts  in  writing- 
in  his  own  name,^  unless  it  appear  on  the  face  of  the  contract  that  he 
did  so  only  as  an  agent,^  otherwise  he  will  not  be  allowed  to  give  parol 
proof  that  he  contracted  as  agent,  so  as  to  relieve  himself  from  responsi- 
bility. But  parol  evidence  may  nevertheless  be  given  to  charge  an  un- 
known principal,  as  it  does  not  deny  that  the  contract  is  binding  on 
those  whom,  on  the  face  of  it,  it  purports  to  bind,  but  shows  that  it  also 
binds  another  by  reason  that  the  act  of  the  agent  in  signing  the  agree- 
ment in  pursuance  of  his  authority  is,  in  law,  the  act  of  the  princi- 
pal :  Higgins  v.  Senior,  8  M.  &  W.  844,  per  Parke,  B.  See  also  Jones 
V.  Littledale,  1  N.  &  P.  (36  E.  C.  L.  R.')  697 :  Magee  v.  Atkinson,  2  M. 
&  W.  440. 

sonally  liable,  as  no  false  confidence  of  security  is  excited  on  the  part 
of  the  purchaser:  Thayer  v.  Wendell,  1  Gallis.  16,  per  Story,  J.: 
Day  V.  Browne,  2  Hamm.  347  ;  Manafer  v.  Morrison,  1  Dana  208  ;  6 
Ala.  77. — R. 

1  Burrell  v.  Jones,  3  B.  &  C.  (lOE.  C.  L.  R.)  160;  Hopkins  w.  Mehaffey, 
11  S.  &  R.129;  Kirkpatrick  v.  Stainer,  22  Wend.  244;  Taintor  v.  Pren- 
dergrast,  3  Hill  72 ;  Simonds  v.  Heard,  22  Pick.  121. — r. 

^  In  Higgins  v.  Senior,  the  point  actually  decided  was,  that  a  defend- 
ant could  not  shift  a  liability  from  his  own  shoulders  to  that  of  another, 
by  showing  that  a  contract  which  purported  to  be  signed  on  his  own 
account  was,  in  reality,  signed  as  agent  for  another ;  and  the  same  has 
been  held  in  this  country,  even  in  cases  where  the  party  signed  as  agent, 
but  not  naming  the  principal :  Pentz  v.  Stanton,  10  Wend.  277  ;  Stack- 
pole  V.  Arnold,  11  Mass.  27;  Alfridson  v.  Ledd,  12  Ibid.  175;  Bradlee 
v.  Glass  Co.,  16  Pick.  347.  But  in  Higgins  v.  Senior,  it  was  further  sug- 
gested, as  had  also  been  done  in  Jones  v.  Littledale,  that  a  distinction 
existed  between  evidence  to  discharge  a  defendant,  and  evidence  to 
charge  a;i  additional  party ;  as,  in  the  latter  case,  the  evidence  would 
not  contradict  the  written  instrument,  but  only  show  that  it  bound 
another  party. — r. 

It  is  no  defence  to  an  action  on  the  individual  note  of  an  agent  that 
it  was  given  for  the  debt  of  his  principal,  and  that  of  this  fact  the  plain- 
tiff had  knowledge :  Bass  v.  Randall,  1  Minn.  404  ;  Haverhill  Ins.  Co.  v. 
Newhall,  1  Allen  130.  A  written  contract,  to  which  one  has  without 
authority  affixed  the  name  of  another,  but  not  his  own,  binds  neither : 
Hegeman  v.  Johnson,  35  Barb.  200. 
28 


406  smith's  law  of  contracts. 

man's  servant  pursuant  to  his  order,  by  the  considera- 
r*407"l  ^^^^  ^^  ^whether  the  servant  was  indebted  to 
the  master,  or  the  master  to  the  servant.  If  he 
lets  the.  day  of  payment  go  by,  he  may  lead  the  princi- 
pal into  a  supposition  that  he  relies  solely  on  the  bro- 
ker ;  and  if,  in  that  case,  the  price  of  the  goods  has  been 
paid  to  the  broker  on  account  of  this  deception,  the 
principal  shall  be  discharged.  But  in  this  case,  payment 
was  demanded  of  the  defendant  on  the  several  days  it 
became  due,  and  no  reason  was  given  him  to  believe 
that  the  broker  alone  was  trusted.  The  defendant  had 
received  a  great  part  of  the  goods ;  the  right  of  the 
vendors  was  entire,  unless  the  defendant  had  paid  the 
price  to  them,  or  to  some  person  authorized  by  them  to 
receive  it.  The  broker  had  no  such  authority ;  there- 
fore the  defendant  is  liable."  In  that  case,  as  observed 
by  the  Court  of  Common  Pleas,  in  the  subsequent  case 
of  Smyth  v.  Anderson,  (^)  Lord  Ellenborough  must  be 
considered  as  having  properly  decided  that  the  defend- 
ant had  no  right  to  set  up  a  payment  accepted  by  the 
brokers  contrary  to  their  duty,  and  not  made  by  him 
in  conformity  with  the  obligation  which  the  contract 
imposed  upon  him. 

In  the  case  of  Smyth  v.  Anderson,  (c)  just  mentioned, 
Melville  ordered  of  the  plaintiffs  certain  goods,  telling 
r*in8T  them  they  were  for  shipment  to  ^Bombay,  pur- 
suant to  orders  received.  They  were  in  fact 
ordered  for  Anderson,  and  were  received  by  him ;  but 
Melville  could  not  say  whether,  at  the  time  of  giving 
the  order,  the  name  of  Anderson  was  mentioned.  The 
invoices,  however,  sent  afterwards,  described  the  goods 
as  "  bought  on  account  of  Anderson,  Bombay,  per  Mel- 

(6)  7  C.  B.  (62  E.  C.  L.  R.)  39. 

(c)  18  L.  J.  (C.  P.)  109  ;  7  C.  B.  (02  E.  C.  L.  R.)  21  s.  c. 


CONTRACTS   BY    AGENTS.  408 

ville,  London,  by  Pender  &  Co.,  agents"  (the  plaintiffs). 
In  payment  for  these  goods,  the  phiintiffs  drew  bills 
upon  Melville,  which  bills  were  dishonored.  Melville 
had  a  general  account  with  Anderson,  on  which,  at  the 
time  of  his  stopping  payment,  he  was  debtor  to  Ander- 
son in  a  large  amount.  There  was  no  evidence  of  any 
payment  by  him  to  Melville  applicable  to  these  goods  in 
particular  ;  but  shortly  after  the  shipment  of  them,  Mel- 
ville sent  Anderson  an  account  debiting  him  with  the 
amount  of  the  bills,  and  the  latter  had  since,  but  before 
they  became  due,  remitted  to  Melville  an  amount  more 
than  sufficient  to  cover  them.  "  Melville,"  said  Maule, 
J.,  "  having  become  insolvent,  Anderson  is  sued  for  the 
price,  and  the  question  is,  whether  it  is  fair  and  reason- 
able he  should  be  so  cl>arged.  The  plaintiffs  got  what 
they  considered  an  advantage,  the  security  of  Melville, 
and  must  be  taken  to  have  requested  that  all  might  be 
done  that  was  necessary  and  incident  to  that  arrange- 
ment ;  and,  therefore,  the  remittance  made  by  Anderson 
to  provide  for  the  bills,  which  was  the  natural  and 
proper  course  to  be  taken  by  him,  was  substantially  made 
'•'with  the  cognizance  and  at  the  request  of  the  pi:4^AQ-| 
plaintiffs;  can  they  then  be  permitted  to  call 
upon  the  defendant  to  pay  the  price  of  the  goods  over 
again  ?  I  think  it  a  clear  and  satisfactory  case  of  non- 
liability on  the  part  of  the  defendant,  who,  in  the 
course  of  a  transaction  to  w^hich  the  plaintiffs  them- 
selves were  parties,  has  done  that  which,  substantially, 
is  a  payment  in  the  ordinary  course  of  business.  The 
fact  that  the  money  was  paid  before  the  bills  became 
due,  does  not  prevent  the  defendant  from  availing  him- 
self of  this  defence.  When  all  the  parties  are  living  in 
this  country,  and  the  agent  has  not  accepted  bills  on 
account  of  the  goods,  so  that  the  duty  of  putting  him 


409  smith's  law  of  contracts. 

ill  funds  by  a  previous  remittance  does  not  arise,  if  the 
principal  pays  the  broker  before  the  proper  time  has 
arrived,  and  without  the  privity  of  the  seller,  one  can 
perceive  the  justice  of  not  permitting  the  principal  to 
set  up  such  premature  payment  in  answer  to  the  seller's 
claim  on  him  for,  the  price." 

The  qualification  or  exception  to  the  rule  as  to  the 
right  of  election  of  the  seller  is  given  somewhat  differ- 
ently by  Mr.  Justice  Blackburn,  in  Armstrong  v. 
Stokes, ((i)  viz.,  "that  nothing  has  occurred  to  make  it 
unjust  that  the  undisclosed  principal  should  be  called 
upon  to  make  the  payment  to  the  vendor."  But  he 
observes  that  it  is  not  very  accurately  defined ;  and  the 
P==n  01  ^^'^^  observation  *applies  to  the  qualification  as 
given  ante,  p.  405.  It-  certainly  must  not  be 
assumed  that  a  mere  payment  by  the  principal  to  his 
agent,  although  hond  fide,  and  free  from  the  blame  of  a 
premature  settlement,  will  absolve  the  principal  from 
the  duty  of  seeing  that  the  agent  pays  the  money  over 
to  the  seller,  (e)  And  in  Heald  v.  Kenworthy,  just 
cited,  Parke,  B.,  was  strongly  of  opinion  (in  which  Pol- 
lock, C.  B.,  and  Alderson,  B.,  concurred)  that  there  was 
"no  authority  for  saying  that  a  payment  made  to  the 
agent  precludes  the  seller  from  recovering  from  the 
principal,  unless  it  appears  that  he  has  induced  the 
principal  to  believe  that  a  settlement  has  been  made 
with  the  agent,"  /.  e.,  by  the  seller,  in  consequence  of 
which  belief  the  principal  pays  the  agent.  This  opinion, 
however,  has  not  been  followed  to  its  full  extent;  and 
it  does  not  seem  necessary  in  order  to  deprive  the  seller 
of  his  right  of  election,  that  there  should  have  been 
some  conduct  on  his  part  which  caused  the  settlement 

{d)  L.  R.  7  Q.  B.  598,  604 ;  41  L.  J.  (Q.  B.)  253,  256. 

\e)  Heald  v.  Kenworthy,  10  Exch.  739  ;  24  L.  J.  (Ex.)  76. 


^lA^ 


zT^ ' " 

CONTRACTS   BY   AGENTS.     "^  410 

between  the  principal  and  his  agent :  in  which  case  it 
woukl  be  obviously  unjust  that  the  seller  should  have 
recourse  to  the  principal.  Thus,  in  Armstrong  v. 
Stokes,  (/)  the  most  recent  case  on  the  subject,  Mr. 
Justice  Blackburn,  in  a  judgment  in  which  all  the 
authorities  are  most  carefully  reviewed,  observes  that 
"^Parke,  B.,  "makes  no  exception  as  to  the  case  r-^iii-i 
where  the  other  side  made  the  contract  with 
the  agent  believing  him  to  be  the  principal,  and  con- 
tinued in  such  belief  till  after  the  payment  was  made ;" 
and  further  on  he  says,  "  We  think  that,  if  the  rigid 
rule  thus  laid  down  were  to  be  applied  to  those  who 
were  only  discovered  to  be  principals  after  they  had 
fairly  paid  the  price  to  those  whom  the  vendor  believed 
to  be  the  principals,  and  to  whom  alone  the  vendor  gave 
credit,  it  would  produce  intolerable  hardship."  In  this 
case,  accordingly,  where  the  defendants  (the  undisclosed 
principals),  after  the  contract  was  made,  and  in  conse- 
quence of  it,  hond  fide  and  without  moral  blame  paid 
the  agents  at  a  time  when  the  plaintiff  (the  vendor) 
still  gave  credit  to  the  agents,  and  knew  of  no  one  else ; 
the  Court  held  that,  after  that,  it  was  too  late  for  the 
vendor  to  recover  against  the  undisclosed  principal.  It 
is  to  be  observed,  however,  that  ^q  agents  here  were 
commissioji  merchants,  not  brokers.  If  the}'^  had  been 
the  latter,  the  vendor  would  not  have  supposed  he  was 
contracting  with  principals. 

An  agent  making  and  signing  a  contract  as  such  would 
in  general,  jn  the  absence  of  a  custom  to  the  contrary, 
not  be  liable  or  entitled  to  sue  upon  it.(^)     Yet,  "in 

(/)  L.  R.  7  Q.  B.  609,  610  ;  41  L.  J.  (Q.  B.)  259. 

\g)  Fleet  v.  Murton,  L.  R.  7  Q.  B.  129  ;  41  L.  J.  (Q.  B.)  49 ;  Fisher 
V.  Marsh,  6  B.  &  S.  (118  E.  C.  L.  R.)  416  ;  34  L.  J.  (Q.  B.)  177,  178 ; 
Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482  ;  42  L.  J.  (C.  P.)  260. 


412  smith's  law  of  contracts. 

r*4.1 91  ^^^^y  contract,  if  the  agent  *cliooses  to  make 
himself  a  contracting  party,  the  other  contract- 
ing party  may  either  sue  the  agent  who  has  himself 
contracted,  though  on  behalf  of  another,  or  he  may  sue 
the  principal  who  has  contracted  through  his  agent; 
and  this,  whether  the  principal  was  known  at  the  time 
or  not,  or  whether  it  was  or  was  not  known  that  he  was 
a  principal."  (/i)  And  as  in  such  a  case  the  agent  is 
liable,  so  also  he  has  a  right  to  sue.  {i) 

The  law  of  agency  derives  much  illustration  from 
cases  decided  upon  partnership  contracts,  for  "  all  ques- 
tions between  partners,"  as  expressed  by  Parke,  B.,  in 
the  case  of  Beckham  v.  Drake,  {k)  "  are  no  more  than 
illustrations  of  the  same  questions  as  between  principal 
and  agent."  It  is  thought,  therefore,  that  some  leading 
principles  of  the  law  of  contracts,  as  it  respects  this 
species  of  agency,  may  be  useful  here,  as  further  illus- 
trating what  has  been  said  before,  and  also  as  giving 
some  insight  into  that  important  head  of  law  to  which 
it  directly  pertains. 

Partnership  is  the  result  of  a  contract  whereby  two 
pii  ^"1  ^1'  more  persons  agree  to  combine  property  or 
*labor  for  the  purpose  of  a  common  undertaking, 
and  the  acquisition  of  a  common  profit.  (/)  One  party 
may  contribute  all  the  money,  or  all  the  stock,  or  all 
the  labor  necessary  for  the  purposes  of  the  firm.  But, 
in  order  to  make  people  liable  as  partners  to  each  other, 
it  is  necessary  that  there  should  be  a  community  of 

[h)  Per  Blackburn,  J.,  in  Christoffersen  v.  Hansen,  L.  R.  7  Q.  B.,  at 
p.  513  ;  41  L.  J.  (Q.  B.)  218.  See  also,  as  to  what  is  such  a  signing  in 
his  own  name  without  qualification  as  to  make  the  agent  liable  :  Paice 
V.  Walker,  L.  R.  5  Ex.  173  ;  38  L.  J.  (Ex.)  109  ;  and  the  notes  to  Thom- 
son V.  Davenport,  2  Smith's  L.  C,  6th  ed.,  pp.  343  et  scq. 

{i)  Fisher  v.  Marsh,  supra. 

[k)  9  M.  &  W.  98. 

(Z)  Smith's  Merc.  Law,  6th  ed.,  by  Dowdeswell,  p.  20. 


CONTRACTS  BY  PARTNERS.  413 

profits,  (;;^)  although  one  of  them  may  stipulate  to  be  in- 
demnified against  loss.(;i)  This,  however,  respects  their 
mutual  claims,  for,  however  they  may  stipulate  with 
each  other,  all  who  take  a  share  in  the  profits,  (o)  and 
all  who  allow  themselves  to  be  described  and  held  out 
as  partners,  are  liable  as  such  to  those  to  whom  they 
have  so  held  themselves  out.(^)  Supposing  the  parties 
to  have  become  partners,  the  result  is  that  each  indi- 
vidual partner  constitutes  the  others  his  agents  for  the 
purposes  of  entering  into  all  contracts  for  him  within 
the  scope  of  the  partnership  concern,  and,  consequently, 
that  he  is  liable  to  the  performance  of  all  such  contracts 
in  the  same  manner  as  if  entered  into  personally  by 
himself.  ($')  It  follows  at  once,  that  in  general  no  new 
member  can  be  introduced  into  the  partnership  without 
the  ^consent  of  all  the  partners  ;(r)  for  to  do  so  t-^aia-] 
would  be  for  an  agent  to  appoint  an  agent  in 
the  matter  of  the  agency,  which,  as  we  have  seen,  can- 
not in  general  be  done.  It  follows,  also,  from  the  same 
principle,  that  where  there  is  no  specific  authority,  the 
individual  members  will  be  liable  upon  the  partnership 
contracts,  or  not,  according  as  the  contract  is  in  the 
ordinary  course   of  the  partnership   business   or   not.^ 

(m)  Hoare  v.  Hawes,  1  Doug.  371. 

(/i)  Bond  V.  Pittard,  3  M.  &  W.  357  ;  Hickman  v.  Cox,  25  L.  J.  (C.  P.) 
277  ;  18  C.  B.  (86  E.  C.  L.  R.)  617. 

(o)  Heyhoe  v.  Burge,  9  C.  B.  (67  E.  C.  L.  R.)  431  ;  19  L.  J.  (C.  P.) 
243. 

ip)  Dickenson  v.  Valpy,  10  B.  &  C.  (21  E.  C.  L.  R.)  140;  Fox  v.  Clif- 
ton, 6  Bing.  (19  E.  C.  L.  R.)  793. 

(g)  6  Bing.  (19  E.  C.  L.  R.)  792;  Hawtayn  v.  Bourne,  7  M.  &  W. 
595. 

(?•)  M'Neill  V.  Reid,  9  Bing.  (23  E.  C.  L.  R.)  68. 

'  Thus,  a  partner  cannot  bind  the  firm  by  a  submission  to  arbitration 
or  by  a  confession  of  judgment:  Adams  r.  Bankart,  supra  ;  Karthaus 
V.  Ferrer,   1  Pet.  222  ;  Barlow  v.   Reno,   1  Bhickf.  252  ;  Grazebrook  v. 


414  smith's  law  of  contracts. 

Thus,  it  has  been  held,  that  one  partner  has  no  implied 
authority  to  bind  his  co-partner  by  a  submission  to  arbi- 

M'Creedie,  9  Wend.  437  ;  Harper  v.  Fox,  7  W.  &  S.  142 ;  "  because  it 
would  bind  the  persons  and  separate  estates  of  the  members,  and  thus 
transcend  the  limits  of  partnership  authority  ;"  nor  can  one  partner 
^ive  a  separate  creditor  an  order  on  a  debtor  of  the  firm  :  M'Kinney  v. 
Bright,  16  Penn.  St.  399  ;  or  otherwise  apply  partnership  effects  to  the 
payment  of  his  own  debts  :  Yale  v.  Yale,  13  Conn.  185  ;  Ro,fi;ers  v.  Bat- 
chelor,  12  Pet.  230 ;  Livingston  v.  Hastie,  2  Caines  249  ;  Moddewell  v. 
Keever,  8  W.  &  S.  63  ;  Dob  v.  Ilalsey,  16  Johns.  34  ;  Langan  v.  Hewett, 
13  Sm.  &  Marsh.  122.  f 

As  a  general  rule,  nothing  is  better  settled  than  that  the  general 
power  of  a  partner  does  not  extend  so  far  as  to  enable  him  to  bind  the 
firm  by  a  specialty  :  Van  Deusen  v.  Blum,  18  Pick.  229  ;  Clement  v 
Brush,  3  Johns.  Cas.  180;  Cummings  v.  Cassily,  5  B.  Mon.  74;  Posey 
V.  Bullitt,  1  Blackf.  99  ;  though  if  the  instrument  were  executed  in  the 
presence  of  and  by  the  direction  of  his  copartner,  it  would  be  the  deed 
of  both  :  Ball  v.  Dunsterville,  4  T.  R.  313  ;  Overton  v.  Tozer,  7  Watts 
159;  Ludlow  v.  Simond,  2  Caines'  Cases  1,42,55;  Mackay  ?;.  Blood- 
good,  9  Johns.  285  ;  Henderson  v.  Barbee,  6  Blackf.  26,  28.  But  in 
Gram  v.  Seton,  1  Hall  262,  and  Cady  v.  Sheppard,  11  Pick.  400,  it  was 
determined,  after  much  consideration  of  all  the  authorities,  that  a  part- 
ner may  bind  his  copartner  by  a.  contract  under  seal,  in  the  name  and 
for  the  use  of  the  firm,  in  the  course  of  the  copartnership  business,  pro- 
vided the  other  partner  assents  to  the  contract  previously  to  its  execu- 
tion, or  afterwards  ratifies  and  adopts  it,  and  this  assent  or  adoption 
may  be  by  parol,  and  such  a  conclusion  is  perhaps  now  sustained  by  the 
weight  of  authority  :  Pike  v.  Bacon,  21  Me.  270  ;  Swan  v.  Steadman, 
4  Mete.  548;  Bond  v.  Aitkin,  6  W.  &  S.  165;  Lucas  v.  Sanders,  1 
M'Mull.  311  ;  Fleming  v.  Dunbar,  2  Hill  (S.  C.)  532;  M'Cart  v.  Lewis, 
2  B.  Mon.  267  ;  Davis  v.  Burton,  3  Scam.  41  ;  Hatch  v.  Crawford, 
2  Por.  54. 

It  has  moreover  been  determined  that  if  the  act  of  one  partner  be  a 
good  and  valid  act  in  itself,  it  will  not  be  rendered  the  less  so  if  done 
by  a  specialty,  provided  the  seal  do  not  vary  the  liability  ;  Deckard  v. 
Case,  5  Watts  22  ;  Henessy  v.  Western  Bank,  6  W.  &  S.  301  ;  Tapley  v. 
Butterfield,  1  Mete.  515  ;  which  cases,  and  many  others  upon  the  sub- 
ject of  the  power  of  a  partner  to  bind  the  firm,  the  student  will  find 
classified  in  the  note  to  Livingston  v.  Rosevelt,  1  Am.  Lead.  Cases 
460.— R. 

See  farther,  on  the  extent  of  the  power  of  one  partner  to  bind  the 
firm :  Rollins  v.  Stevens,  31  Me.  454  ;  Doremus  v.  M'Cormick,  7  Gill 
49  ;  Price  v.  Alexander,  2  Greene  427  ;  Lang  v.  Waring,  17  Ala.  145 ; 


CONTRACTS  BY  PARTNERS.  414 

tration,  (-9)  or_  by  a  .guaranty,  {t)  respecting  the  matters  ^^    i-/<^> 

of  the  partnership :  for  it  is  clear  that  snch  a  power  doeS"-^^^^'''^^^^^ 

not  arise  out  of  the  relation  of  partnership,  and  is  not, 

therefore,  to  be  inferred  from  it ;  and,  where  it  is  relied 

upon,  it  must,  like   every  other  authority,  be  proved 

either  by  express  evidence,  or  by  such  circumstances  as 

lead  to  the  presumption   of  such  an  authority  having 

been  conferred.     Thus,  also,  in  Hasleham  v.  Young,  (z() 

where  persons  were  in  partnership  as  "attorneys,  and  one 

of  them  gave  an  undertaking,  that,  in  consideration  that 

the  plaintiff  in  an  action  would  discharge  the  defendant 

in   that  action  who  was  in  custody  under  an  execution 

{&)  Adams  v.  Bankart,  1  C,  M.  &  R.  681. 
{t)  Brettel  v.  Williams,  4  Exch.  623. 
{u)  5  Q.  B.  (48  E.  C.  L.  R.)  833. 

Buchoz  V.  Grandjean,  1  Mann.  367  ;  Mills  v.  Dickson,  6  Rich.  487  ; 
Drake  r.  Brander,  8.  Tex.  351.  The  authority  of  partners,  active  and 
silent,  is  limited  to  the  business  of  the  partnership  :  Bell  v.  Faber, 
1  Grant  31  ;  Cay  ton  v.  Hardy,  27  Mo.  536  ;  Barnard  v.  Lapeer,  6  Mich. 
274  ;  Scott  V.  Bandy,  2  Head.  197  j.Boardman  v.  Adams,  5  Clarke  224  ; 
Stockwell  V.  Dillingham,  50  Me.  442;  Welles  v.  Marsh,  30  N.  Y.  344. 

The  promise  of  one  partner  that  the  firm  will  pay  the  debts  of  a  third 
person  is  not  binding  on  his  copartners  ;  the  authority  of  a  partner  over 
his  copartners  does  not  extend  so  far :  M'Quewans  v.  Hamlin,  35  Penn. 
St.  517  ;  Selden  v.  Bank,  3  Minn.  166.  Generally  it  is  not  within 
the  scope  of  business  to  accept  accommodation  bills  :  Mechanics'  Bank 
V.  Livingston,  33  Barb.  458 ;  Bowman  v.  Cecil  Bank,  3  Grant  33  ;  nor  to 
subscribe  to  the  stock  of  a  corporation :  Livingston  v.  Pittsburgh  R.  R. 
Co.,  2  Grant  219.  But  see  Maltby  v.  Northwestern  R.  R.  Co.,  16  Md. 
422.  A  partner  binds  his  firm  only  on  the  theory  of  an  implied  agency 
for  the  purposes  of  the  mutual  adventure,  and  the  agency  does  not  extend 
beyond  what  may  be  fairly  regarded  as  coming  within  its  reach:  Hotchin  v. 
Kent,  8  Mich.  526  ;  London  Society  v.  Hagerstown  Bank,  36  Penn,  St. 
498.  A  contract  creating,  in  fact,  a  new  partnership  between  two  dif- 
ferent firms,  though  both  engaged,  in  the  same  business,  cannot  be  made 
on  behalf  of  cither  firm  by  a  single  member  thereof,  but  requires  the 
consent  of  all  the  members:  Buckingham  v.  Ilanna,  20  Ind.  110.  As 
to  the  power  of  one  partner  to  bind  the  firm  by  a  promissory  note  :  Gray 
t'.  W'ard,  10  HI.  32;  Kimbro  v.  Bullitt,  22  How.  (S.  C.)  256;  Dow  v. 
Phillips,  24  HI.  249. 


414  smith's  law  of  contracts. 

therein,  they,  the  attorneys,  would  pay  the  plaintiff  the 
p-Ll  ''1  ^^^^  ^^^^  costs  on  a  certain  day,  and  he  signed 
*it  with  the  partnership  name;  the  Court  con- 
sidered it  a  very  clear  case  that  the  guaranty  was  not 
given  in  the  usual  course  of  business,  and  no  authority 
being  shown  that  the  firm  was  not  liable.  There  is 
nothing,  however,  to  prevent  the  parties  from  confining 
the  credit  to  an  individual  partner ;  and  it  is  a  question 
for  the  jury  whether  this  has  or  has  not  been  done. 
Where  there  has  been  nothing  to  discharge  a  partner 
from  his  liability,  or  to  rebut  the  presumption  of  author- 
ity to  pledge  his  credit  arising  from  the  mere  fact  of  his 
being  a  partner,  he  is  clearly  liable;  but  where  there 
are  fiicts  to  show  that  it  was  the  intent  of  the  contract- 
ing parties  to  restrict  the  credit  to  one  of  several  part- 
ners, the  liability  is  limited  by  such  intent.  Cases  of 
this  description  occur  where  the  partner  represents  him- 
self as  the  only  person  composing  the  firm.  Thus,  in 
De  Mautort  v.  Saunders,.(^')  Saunders  (not  the  defend- 
ant) and  Wiehe  drew  a  bill  at  the  Mauritius  on  Saun- 
ders Brothers  (the  defendants)  in  London,  payable  to 
Bougier,  who  indorsed  it  to  the  plaintiff,  and  the  de- 
fendants accepted  the  bill.  On  being  sued  upon  it  they 
set  up  as  a  defence  that  they  were  in  partnership  with 
Wiehe  &  Saunders,  and  were  liable  jointly  with  them. 
The  Court  held,  that  the  verdict,  which  was  for  the 
plaintiff,  was  proper,  and  observed,  that  it  was  for  the 
jury  to  say  whether  the  plaintiff,  when  he  took  the  bill, 
r*4.i  ci  ^^^  ^^y  ^6^^on  to  *know  that  Wiehe  &  Saun- 
ders were  partners  in  the  house  in  London  on 
which  the  bill  was  drawn.  It  was  incumbent  on  the 
defendants  to  show  that  the  plaintiff  had  trusted  the 
other  two;  for,  if  a  person  contract  with  two  other  per- 

{v)  1  B.  &  Ad.  (20  E.  C.  L.  R.)  398. 


1 


CONTRACTS  BY  PARTNERS.  416 

sons,  knowing  tliem  alone  in  the  transactions,  he  may 
sue  them  only.  If,  indeed,  after  the  contract  be  made, 
he  discover  that  they  had  a  secret  partner  who  had  an 
interest  in  the  contract,  he  is  at  liberty  to  sue  that 
secret  partner  jointly  with  them,  but  he  is  not  bound  so 
to  do.  On  the  other  hand,  where  an  action  was  brought 
for  the  price  of  coals  delivered  to  the  defendant  under 
the  name  of  Bush  &  Co.,  it  appeared  that  for  some  time 
before  the  coals  were  ordered  the  partnership  consisted 
of  Bush  and  the  defendant,  R.  Smith;  that,  on  Bush's 
death,  before  the  coals  were  supplied,  W.  Smith  became 
a  partner  with  defendant,  and  so  continued,  but  they 
carried  on  their  trade  under  the  old  name  of  Bush  & 
Co.;  and  that  W.  Smith  had  not  ordered  the  coals:  it 
it  was  contended,  that  W.  Smith  should  have  been  sued 
conjointly  with  the  defendant.  The  Court  decided  that, 
the  partnership  having  been  fully  proved,  the  defendant 
would  not  be  liable  singly  unless  he  led  the  plaintiff  to 
believe  that  he  alone  constituted  the  firm  of  Bush  & 
Co.{w)  "If,"  said  Lord  Abinger,  C.  B.,  in  the  case 
just  cited,  "a  person,  contracting  with  another  r:5:4^-|  7-1 
for  *goods,  delivers  an  invoice  made  out  to  a 
firm,  and  nothing  is  said  as  to  the  persons  composing  it, 
he  takes  his  chance  who  are  the  partners  in  that  firm. 
If,  indeed,  the  party  represents  himself  as  the  only  per- 
son composing  the  firm,  an  action  may  be  brought 
against  him  alone;  or  if,  on  being  asked  who  his  part- 
ners are,  he  refused  to  give  any  information,  that  might 
be  evidence  for  the  jury  to  say  whether  he  did  not  hold 
himself  out  as  solely  liable." 

There  is  another  case,  so  well  worth  attending  to, 
that  it  will  not  be  multiplying  examples  too  much  to 
adduce  it  here.     Nesham  agreed  to  sell  the  stock,  ma- 

[w]  Bonfield  v.  Smith,  12  M.  &  W.  405. 


417  smith's  law  of  contracts. 

cliinery,  &c.,  of  a  news[)aper  printing  office  to  Lowthin 
for  .£1500,  to  be  paiji,  with  interest,  by  yearly  instal- 
ments in  seven  years,  and  guaranteed  to  him  the  clear 
yearly  profit  of  £150  over  and  above  the  payment  of 
principal  and  interest  before  mentioned ;  and  Lowthin 
agreed  to  pay  all  the  surplus  profits  to  Nesham,  until 
they  should  amount  to  £500,  if  they  should  amount  to 
so  much  during  the  seven  years,  in  w^hich  event  he 
should  also  pay,  over  and  above  the  purchase-money, 
interest,  and  £500,  the  existing  liabilities,  which  were 
fixed  between  them  at  £250.  Lowthin  carried  on  the 
newspaper  in  his  own  name,  and  purchased,  in  his  own 
name,  from  the  plaintiff,  paper  for  the  use  of  the  con- 
cern, and  used  it  therein,  but  the  plaintiff  never  actually 
gave  any  credit  to  Nesham.  Yet,  the  Court  held  that 
r*4-18"l  Nesham  *was  liable  because  he  shared  the 
profits :  (x)  and  indeed  it  seems  difficult  to 
treat  the  case  otherwise  than  as  that  of  an  unknown 
principal  sued  upon  being  discovered  to  be  such.  An- 
other case  is  where  one  partner  has  authority  from  the 
others  to  make  the  contract  in  question  on  his  own  ac- 
count only,  and  not  on  theirs.  Thus,  the  plaintiff  sup- 
plied paper  to  one  Whitehead,  a  printer,  and  it  was 
proved  that  there  was  an  agreement  between  White- 
head, Ackerman,  and  Carleton,  to  bring  out  a  periodical 
publication  called  the  Sporting  Review,  in  which  Acker- 
man  was  to  be  publisher,  Garleton  editor,  and  White- 
head printer,  and  the  latter  was  to  supply  the  paper, 
and  charge  it  to  the  account  of  the  three,  who,  after 
payment  of  all  expenses,  were  to  share  the  profits 
equally.     No  profits  were  made.     The   plaintiffs  sued 

{x)  Barry  v.  Nesham,  3  C.  B.  (54  E.  C.  L.  R.)  641  ;  Iliokman  v.  Cox, 
25  L.  J.  (C.  P.)  277;  18  C.  B.  (86  E.  C.  L.  R.)  617  ;  27  L.  J.  (C.  P.) 
129 ;  3  C.  B.  (N.  S.)  (91  E.  C.  L.  R.)  523,  in  Ex.  Ch. 


CONTRACTS  BY  PARTNERS.  418 

the  three,  and  were  nonsuited,  and  the  Court  consid- 
ered that  the  question  was,  did  Ackerman  and  Carleton 
authorize  Whitehead  to  purchase  the  paper  on  their  ac- 
count or  his  own.  He  might,  they  said,  have  applied 
the  paper  to  any  other  purpose  than  the  Sporting  Re- 
view. (^)  The  result  is,  that  the  liability  arising  from 
the  naked  fact  of  partnership  is  prima  facie  the  liability 
of  all  the  partners,  and  may  be  rebutted  by  di-  ^^ , .,  ^^ 
rect  ^evidence  that  credit  was  not  given  to  the  ^  -' 
partnership,  but  to  an  individual  member  of  it.(^) 
This  doctrine  is  very  strongly  corroborated  by  the  case 
of  Holcroft  V.  Higgins.  {a)  The  plaintiff  had  been  en- 
gaged to  Avrite  articles  in  the  Newcastle  Advertiser,  by 
a  person  who,  at  the  time  of  the  contract,  had  become 
in  fact  the  sole  proprietor  of  the  newspaper,  and  the 
two  defendants  were  sought  to  be  made  liable,  in  con- 
sequence of  their  having  suffered  their  names  to  remain 
as  registered  proprietors  of  the  newspaper,  in  the  decla- 
ration required  to  be  filed  by  6  &  7  Will.  IV.  c.  76,  they 
having  previously  been  proprietors  of  the  newspaper, 
but  having  ceased  to  be  so  before  the  contract  w^as  en- 
tered into.  It  was  adjudged  that  not  only  were  the 
defendants  not  liable,  but  that  the  fact  of  their  being 
co-proprietors  Avas  immaterial,  though  they  had  held 
themselves  out  as  such,  if  it  were  shown  that  another 
partner  contracted  with  the  plaintiff  in  such  a  manner 
that  credit  was  given  to  him  and  not  to  them.  And 
the  Court  thought  that  the  evidence  was,  that  the  con- 
tract was  made  by  the  sole  proprietor,  upon  his  own 
sole  responsibility,  and  not  upon  that  of  the  defendants. 

[y)  Wilson  v.  "Whitehead,  10  M.  &  W.  50. 

[z]  Peacock  v.  Peacock,  2  Camp.  45 ;  Beckham  v.  Knight,  4  Bing.  N. 
0.  (33  E.  C.  L.  R.)  243 ;  1  M.  &  Gr.  (39  E.  C.  L.  K.)  Ti^,  Exch.  Ch. ; 
Brett  V.  Beckwith,  26  L.  J.  (Ch.)  130. 

(a)  2  C.  B.  (52  E.  C.  L.  R.)  488  ;  15  L.  J.  (C.  P.)  129,  s.  c. 


419  smith's  law  of  contracts. 

It  was  true  that,  on  the  register  at  the  stamp-office,  they 

r*l901    ^^^^^  themselves  out  as  proprietors,  and  if  it  "•'had 

been  shown  that  the  pLaintifF  was  thereby  in- 

jduced  to  enter  into  the  contract,  they  might  have  been 

liable. 

It  must  also  be  shown  that  the  debt  for  which  an  ac- 
tion is  brought  accrued  during  the  time  the  party  sued 
was  actually  in  partnership.  He  will  be  liable  neither 
for  contracts  made  before  he  became  a  partner,  (J)  nor 
after  he  ceases  to  be  one,(c)  provided  he  gives  proper 
notice  of  his  retirement,  (c/ ) 

It  has  been  long  held  that  dormant  partners  are 
equally  liable  with  ostensible  partners  upon  all  con- 
tracts made  for  the  firm  during  their  partnership ;  on 
the  principle,  not  perhaps  very  satisfactory,  that  the 
dormant  partner,  being  entitled  to  all  the  profits  of  the 
contract  made  by  the  firm  to  which  he  belongs,  ought 
also  to  share  in  the  liability ;  and  that  having  a  right 
moreover  to  sue  others  on  it,  (e)  he  ought  not  to  be  pro- 
tected from  being  sued  on  it  by  them :  for  "  Qui  sentit 
commodum  sentire  debet  et  onus.''  It  is  therefore  decided 
that,  as  an  undisclosed  principal  may  be  liable  as  soon 
as  he  is  discovered,  subject  to  all  the  equities  between 
r=5=l9l  1  ^^^  parties,  so  may  an  undisclosed  partner  :  *and 
he  may  be  made  liable  on  a  written  contract  not 
under  seal,  to  which  he  is  not  expressly  a  party,  if  it 
be  made  out  that  he  is  a  party  to  it  in  point  of  law,  and 

(6)  Vere  v.  Ashby,  10  B.  &  C.  (21  E.  C.  L.  R.)  288 ;  Battley  v.  Lewis, 
1  M.  &  Gr.  (39E.  C.  L.  R.)  155  ;  Beale  v.  Mouls,  10  Q.  B.  (59  E.  C.  L. 
R.)  976  ;  Whitehead  v.  Barron,  2  M.  &  Rob.  248. 

(c)  Heath  V.  Sanson,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  172. 

(d)  Parkin  v.  Carruthers,  3  Esp.  248  ;  Williams  v.  Keats,  2  Stark.  (3 
E.  C.  L.  R.)  290 ;  Dolman  v.  Orchard,  2  Car.  &  P.  (12  E.  C.  L.  R.)  104  -, 
Moorson  v.  Bell,  2  Camp.  616. 

(e)  Robson  v  Drummond,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  308.  See  28  & 
29  Vict.  c.  86. 


CONTRACTS  BY  PARTNERS.  421 

that  he  has  authorized  the  other  partners  to  sign  it  on 
his  behalf.  (/) 

Nominal  partners  are  as  liable  as  dormant  ones,  not 
because  they  are  principals  for  whom  others  are  agents, 
but  on  the  ground  that  credit  has  been  given  to  them, 
and  it  is  just  to  the  creditor  that  they  should  be  respon- 
sible for  the  result  of  so  holding  themselves  out  to  the 
world.  Indeed,  it  would  be  highly  prejudicial  to  com- 
merce to  allow  a  wealthy  man  by  the  loan  of  his  name, 
to  give  other  persons  a  fictitious  credit  in  the  world,  and 
then  refuse  to  satisfy  creditors  who  had  made  their  ad- 
vances upon  the  faith  of  his  apparent  responsibility,  (^j/) 
But  the  claims  for  which  a  partner  merely  nominal  is 
liable,  must  arise  out  of  credit  really  given  to  the  fact 
that  he  was  a  partner  when  the  credit  was  given.  The 
jury  must  be  satisfied  that  the  plaintiff  bond  fide  be- 
lieved that  the  partner  sought  to  be  charged  was  really 
such.(/^) 

A  general  notice  is  sufficient  to  discharge  partners 
who  retire  from  firms  as  regards  the  world  at 
*large  ;  but  an  express  notice  is  requisite  to  dis-  L  --  J 
charge  them  as  regards  previous  customers.  This  being 
given,  the  retiring  partner  is  effectually  discharged  from 
all  debts  subsequently  accruing ;  nor  can  he  be  made 
liable  by  any  unauthorized  use  of  his  name  by  his  pre- 
vious partners,  (?)  though  his  liability,  as  well  as  his 
power  to  make  admissions,  or  to  release  or  sue  for  debts 
contracted  during  his  partnership,  of  course  remains. 

(/)  Beckham  v.  Drake,  9  M.  &  W.  79;  11  M.  &  W.  315,  in  Exch. 
Ch. 

[g]  Wauirh  v.  Carver,  2  H.  Bl.  235 ;  1  Smith's  L.  C. 

\h)  Dickenson  v.  Yalpy,  10  B.  &  C.  (21  E.  C  L.  11.)  128;  Lake  v.  Duke 
of  Argyll,  6  Q.  B.  (51  E.  C.  L.  R.)  477 ;  Wood  v.  Duke  of  Argyll,  6  M. 
&  G.  (46  E.  C.  L.  R.)  928. 

[i)  Abel  V.  Sutton,  3  Esp.  108. 


422  smith's  law  of  contracts. 

Ill  Farrar  v.  Deflmne,(y)  the  defendant  had  been  a 
dormant  partner,  but  ceased  to  be  so  before  the  debts 
accrued  for  which  the  action  was  brought.  The  plaintiff 
had  known  of  the  partnership,  but  the  dissolution  not 
having  been  advertised,  he  had  no  knowledge  of  it. 
Mr.  Justice  Cresswell  said,  in  summing  up  the  case  : 
"  The  law  stands  thus  :  if  there  had  been  a  notorious 
partnership,  but  no  notice  had  been  given  of  the  disso- 
lution thereof,  the  defendant  would  have  been  liable. 
If  there  had  been  a  general  notice,  that  would  have  been 
sufficient  for  all  hut  actual  custo?ners ;  these,  however, 
must  have  had  some  kind  of  actual  notice.  If  the  part- 
nership had  remained  profoundly  secret,  the  defendant 
could  not  have  been  affected  by  transactions  which  took 
place  after  he  had  retired ;  but  if  the  partnership  had 
become  known  to  any  person  or  persons,  he  would  be 
r:^j99-l  ill  the  same  situation  ^'as  to  all  such  persons,  as 
if  the  existence  of  the  partnership  had  been 
notorious." 

Where  bills  are  drawn  by  partners  in  trade,  the 
general  authority  implied  by  the  custom  of  merchants 
binds  each  partner ;  but  not  so  where"  the  partnership 
is  not  of  a  commercial  nature,  such  as  that  of  attorneys 
for  instance,  in  which  case  it  must  be  shown  that  the 
party  accepting  or  drawing  had  special  authority  to  do 
so,  even  where  it  is  done  in  the  name  of  the  firm.(^) 
Where  one  partner  signs  for  the  firm,  being  authorized 
to  do  so,  and  describes  himself  as  signing  for  the  firm, 
he  is  not  separately  liable,  but  the  firm  alone. (/)  If  he 
accepts,  professing  to  have  authority  which  he  has  not, 

[j)  ]  Car.  &  K.  (47  E.  C.  L.  R.)  580. 

(A-)  Hedley  v.  Bainbridge,  3  Q.  B.  (43  E.  C.  L.  R.)  316 ;  Levy  v.  Pyne, 
1  Car.  &  M.  (41  E.  C.  L.  R.)  453. 

[1)  Ex  parte  Buckley,  In  re  Clarke,  14  M.  &  W.  469,  overruling  Hall 
V.  Sraitli,  1  B.  &  C.  (8  E.  C.  L.  R.)  407. 


CONTRACTS  BY  BROKEKS.  423 

a  bill  addressed  to  the  firm,  he  makes  himself  liable 
thereby,  {m) 

It  will  be  concluded  from  the  nature  of  partnership 
authority,  that  partners  are  not  liable  for  the  fraudulent 
contracts  of  a  co-partner,  if  they  can  prove  the  know- 
ledge of  the  fraud  by  the  plaintiff,  [n)  Neither  are  they 
bound  where  an  express  warning  was  given  to  the  plain- 
tiff by  the  partners  sought  to  be  charged. 

There  are  two  other  classes  of  agents  so  commonly 
'•'employed,  and  that  upon  business  so  import- 
ant, that  a  few  propositions  of  law  respecting  ^  J 
them  will  be  useful ;  these  are  brokers  and  factors. 
Factors  are  entrusted  with  the  possession  of  the  pro- 
perty they  are  to  dispose  of;  brokers  are  entrusted  with 
the  disposal,  but  not  with  the  possession.  The  latter, 
therefore,  are  mere  middle  men  between  the  two  parties 
contracting,  and  cannot  sue  in  their  own  name  upon 
contracts  made  by  them  as  brokers,  (o)  Neither  are 
they  liable  upon  contracts  so  made,  unless  there  be  an 
usage  in  the  particular  trade  to  make  the  broker,  though 
contracting  as  such,  personally  liable.  (/?)  And  evidence 
of  such  usage  is  admissible,  even  though  the  contract  of 
sale  be  in  writing.  The  contract  between  the  parties 
employing  the  broker  is  the  contract  of  employment, 
and  not  the  contract  of  sale,  and  the  custom  is  attached 
to  the  employment.  (^)     Brokers,  by  force  of  the  stat. 

[m)  Owen  v.  Van  Uster,  10  C.  B.  (70  E.  C.  L.  R.)  318  ;  20  L.  J.  (C. 
P.)  61,  s.  c. ;  Nicholls  v.  Diamond,  23  L.  J.  (Ex.)  1  ;  9  Ex.  154,  s.  c. 

[n)  Musgrave  v.  Drake,  5  Q.  B.  (48  E.  C,  L.  R.)  185. 

(o)  Fail-lie  v,  Fenton,  L.  R.  5  Ex.  169,  39  L.  J.  (Ex.)  107. 

ip)  Fleet  V.  Murton,  L.  R.  7  Q.  B.  126,  41  L.  J.  (Q.  B.)  49 ;  and  see 
a?t^e,  p.  411. 

{q)  Fleet  v.  Murton,  supra,  at  pp.  128,  133,  L.  R.,  at  p.  51,  L.  J.  See 
also  Humfrey  v.  Dale,  7  E.  &  B.  (90  E.  C.  L.  R.)  266,  26  L.  J.  (Q.  B.) 
137  -,  s.  c.  in  Exch.  Ch.  E.  B.  &  E.  (96  E.  C.  L.  R.)  1004,  27  L.  J.  (Q. 

29 


424  smith's  law  of  contracts. 

6  Anne  c.  16,  cannot  practice  in  London  without  being 
admitted  by  the  Mayor  and  Aldermen,  when  they  take 
an  oath  and  enter  into  a  bond  for  the  observance  of  cer- 
r^A.9'^1  tain  regulations,  (r)  We  have  seen  *that  a  per- 
son acting  as  a  broker  in  London  without  being 
duly  qualified,  cannot  recover  compensation.  (5)  Bro- 
kerage relates  to  goods  and  money,  and  not  to  contracts 
for  labor ;  (t)  therefore,  a  stockbroker  is  within  the  stat- 
ute, (21)  but  not  a  shipbroker,  (a;)  or  an  auctioneer,  (j/')  or 
one  who  procures  and  hires  persons  to  work  for  ano- 
ther, in  surveying  lines  of  railway.  (2^)  Each  stockbro- 
ker is  bound  to  keep  a  book  called  a  broker's  book,  and 
to  enter  in  it  all  contracts  for  stock,  with  dates  and 
names,  and  to  produce  it  when  required.  («)  All  other 
brokers  keep  a  book  and  make  similar  entries  in  it, 
which  in  London  they  are  required  to  do  by  their 
bond,  (J)  and  this  entry,  signed  by  the  broker  who  has 
negotiated  the  sale  and  purchase  of  goods,  constitutes 
the  binding  contract  between  the  parties,  (c)  whose  agent 
for  making  it  the  broker  is.{d)  But  in  practice  the 
bought  and  sold  notes,  which  are  memoranda  of  the 

B.)  390;  Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482;  42  L.  -J.  (C.  P.) 
260. 

(r)  Kemble  v.  Atkins,  Holt  N.  P.  (3  E.  C.  L.  R.)  427  ;  6  Anne,  c.  16  : 
57  Geo.  3,  c.  Ix. ;  10  Anne,  c.  19,  s.  121. 

(s)  Cope  V.  Rowlands,  2  M.  &  _W.  149  ;  Smith  v.  Lindo,  27  L.  J.  (C. 
P.)  196 ;  4  C.  B.  {N.  S.)  (93  E.  C.  L.  R.)  395 ;  5  C.  B."(N.  S.)  (94  E.  C. 
L.  R.)  587,  in  Exch.  Ch.. 

{t)  Milford  V.  Hughes,  16  M.  &  W.  174. 

[u]  Clarke  v.  Powell,  4  B.  &  Ad.  (24  E..  C.  L.  R.)  846. 

{x)  Gibbons  v.  Rule,  4  Bing.  (13  E.  C.  L.  R.)  301. 

ly)  Wilkes  V.  Ellis,  2  H.  Bl.  555. 

(z)  Milford  r.  Hughes,  svpra.  [a)  7  Geo.  2,  c.  8,  s.  9. 

[b)  Kemble  v.  Atkins,  supra. 

(c)  Sivewright  v.  Archibald,  20  L.  J.  (Q.  B.)  529;  17  Q.  B.  (79  E.  C. 
L.  R.)  104,  s.  c. ;  Humlrey  v.  Dale,  27  L.  J.  (Q.  B.)  390,  in  Exch.  Ch. 

(tZ)  Hinde  v.  Whitehouse,  7  East  558  ;  Goom  v.  Aflalo,  6  B.  &  C,  (13 
E.  C.  L.  R.)  117. 


CONTRACTS  BY  BROKEES.  425 

purchase  and  sale,  signed  by  the  broker,  and  sent  to 
the  parties,  *are  considered  as  constituting  the  r:^49e-| 
complete  proof  of  the  contract. 

A  remarkable  variation  from  the  usual  course  of  busi- 
ness obtains  in  the  case  of  insurance  brokers.  By  these 
persons  subscriptions  to  a  policy  of  assurance  are  almost 
always  procured ;  to  them  the  underwriters  look  for  the 
premium  of  insurance,  and  to  them  the  assured  pay  the 
premiums.  This  is  clearly  explained  in  the  following 
extract  from  the  judgment  of  Bayley,  J.,  in  Power  v. 
Butcher  :(6) — "According  to  the  ordinary  course  of 
trade  between  the  assured,  the  broker,  and  the  under- 
writer, the  assured  do  not,  in  the  first  instance,  pay  the 
premium  to  the  broker,  nor  does  the  latter  paj^  it  to  the 
underwriter.  But,  as  between  the  assured  and  the 
underwriter,  the  premiums  are  considered  as  paid.  The 
underwriter,  to  whom  in  most  instances  the  assured  are 
unknown,  looks  to  the  broker  for  payment,  and  he  to 
the  assured.  The  latter  pay  the  premiums  to  the  bro- 
ker only,  and  he  is  a  middle  man  between  the  assured 
and  the  underwriter ;  but  he  is  not  solely  agent — he  is 
a  principal  to  receive  the  money  from  the  assured,  and 
to  pay  it  to  the  underwriter." 

As  to  the  mode  in  which,  in  the  event  of  a  loss,  the 
payment  is  made  to  the  assured,  the  brokers  usually 
settle  and  adjust  the  loss,  and  receive  the  payment.  It 
is  a  frequent  custom  to  make  settlements  *in  [^■a<^'7-\ 
account,  there  being,  as  you  have  seen,  an  ac- 
count between  the  broker  and  the  underwriter ;  and  it 
is  clear  that  if  the  assured  have  known,  or  ought,  in  the 
common  course  of  things,  to  have  known  of  such  a 
custom,  they  will  be  bound  by  it  although  money  has 
not  been  actually  paid  by  the  underwriter.     This  was 

[e)  10  E.  &  C.  (21  E.  C.  L.  R.)  339. 


427  smith's  law  of  contracts. 

decided  in  Stewart  v.  Aberdein;(/)  but  the  Court 
added,  in  delivering  its  judgment,  "  It  must  not  be  con- 
sidered, that,  by  this  decision,  the  Court  means  to  over- 
rule any  case  deciding  that  where  a  principal  employs 
an  agent  to  receive  money,  and  pay  it  over  to  him,  the 
agent  does  not  thereby  acquire  any  authority  to  pay  a 
demand  of  his  own  upon  the  debtor,  by  a  set-off  in  ac- 
count with  him.(^)  But  the  Court  is  of  opinion  that, 
where  an  insurance  broker  or  other  mercantile  agent 
has  been  employed  to  receive  money  for  another,  in  the 
general  course  of  his  business,  and  where  the  known 
general  course  of  business  is  for  the  agent  to  keep  a 
running  account  with  the  principal,  and  to  credit  him 
with  sums  which  he  may  have  received  by  credits  in 
account  with  the  debtors,  with  whom  he  also  keeps  run- 
r*4-981  ^^'^o  accounts,  and  not  merely  with  *moneys 
actually  received,  the  rule  laid  down  in  those 
cases  cannot  properly  be  applied ;  but  it  must  be  under- 
stood that  where  an  account  is  hona  fide  settled  according 
to  that  known  usage,  the  original  debtor  is  discharged, 
and  the  agent  becomes  the  debtor,  according  to  the 
meaning  and  intention  and  with  the  authority  of  the 
principal."  But  the  necessity  of  this  knowledge  in  the 
principal  in  order  to  render  such  a  settlement  in  account 
equivalent  to  a  settlement  according  to  the  express 
authority  of  the  principal,  has  been  very  strongly  illus- 
trated in  a  recent  case,  in  which  even  a  usage  at  Lloyd's 
to  this  effect  was  held  insufficient  to  give  authority  to 

(/)4M.  &W.  211. 

\g)  Underwood  v.  NichoUs,  25  L.  J.  (C.  P.)  79 ;  17  C.  B.  (84  E.  C.  L. 
R.)  239  ;  Guardians  of  Bedford  Union  v.  Pattison,  26  L.  J.  (Ex.)  115  ; 
1  H.  &  N.  523,  in  Ex.  Ch. ;  Ex  parte  Barkworth  v.  Harrison,  27  L.  J. 
(Bptcy.)  5;  Sweeting  v.  Pearce,  29  L.  J.  (C.  P.)  265;  Perry  v.  Hall,  29 
L.  J.  Ch.  677  ;  Catterall  v.  Hindle,  L.  R.  1  C.  P.  186,  2  C.  P.  368  (Ex. 
Ch.),  35  L.  J.  (C.  P.)  161. 


CONTRACTS  BY  BROKERS.  428 

the  agent  where  there  was  proof  that  the  principal  was 
ignorant  of  it.(/^) 

These  few  propositions,  it  is  hoped,  will  enable  you 
more  readily  to  understand  those  cases  of  the  law  of 
principal  and  agent,  where  the  latter  is  a  broker,  and 
where  the  general  rules  do  not,  therefore,  seem  directly 
applicable  without  reference  to  these  peculiarities. 

As  factors  are  entrusted  with  the  possession  of  goods 
usually  for  the  purpose  of  selling  them,  the  ordinary 
rules  applying  to  agents  apply  to  them,  so  far  as  they 
are  exercising  their  authority  to  sell.^  Thus,  the  Court 
of  Common  Pleas  decided  in  the  case  of  Smart  v.  Ban- 
dars, (/)  that  the  mere  relation"^  of  principal  and  r^^oq-i 
factor  confers  ordinarily  an  authority  to  sell  at 
such  times  and  for  such  prices  as  the  factor  may,  in  the 
exercise  of  his  discretion,  think  best  for  his  employer ; 
but  if  he  receives  the  goods,  subject  to  any  special  in- 
structions, he  is  bound  to  obey  them.  But  this  being 
the  factor's  usual  employm'ent,  it  is  obvious  that  if  he 
pledges  the  goods  which  he  is  authorized  to  sell,  he 
does  not  act  in  the  usual  course  of  his  employment; 
and  if  he  had  not  an  express  authority  to  pledge, 
he  could  not,  by  pledging,  confer  any  right  on  the 
pledgee.  (^)  It  was  thought  expedient  to  alter  this 
rule  of  law,  and  three  statutes  have  been  passed  upon 
the  subject  of  contracts  made  by  factors,  by  which  and 
by  the  common  law  already  described,  those  contracts 

(A)  Sweeting  v.  Pearce,  supra;  30  L.  J.  (C.  P.)  110,  s.  c.  in  Ex.  Ch. 
(i)  3  C.  B.  (54  E.  C.  L.  R.)  380;  5  C.  B.   (57  E.  C.  L.  R.)  895,  in 
Exch.  Ch.     See  Harrison  v.  Scott,  5  Moo.  P.  C.  C.  357. 

{k)  Martini  v.  Coles,  1  M.  &  Sel.  140  ;  Shipley  v.  Kymer,  Ibid.  484. 

*  Factors  are  to  be  treated  as  special  owners  of  the  property  consigned 
to  them.  They  may  sue  in  their  own  names  for  the  price-of  goods  sold — 
may  receive  payments — and  give  I'eceipts,  unless  notice  to  the  contrary 
has  been  given  by  their  principals:  Graham  v.  Duckwall,  8  Bush  12. 


429  smith's  law  of  contracts. 

are  now  regulated.     These  (and  the  rule  applies  to  all 
instances  of  statute  law)  must  be  studied  in  their  very 
words,  although  a  general  sketch  of  their  effect  is  at- 
tempted here.     The  first  of  these  statutes  is  4  Geo.  IV, 
c.  83 ;  this  was  altered  and  amended  by  6  Geo.  IV.  c. 
94,  and  both  have  received  amendment  by  the  5  &  6 
Vict.  c.  o9.     The  following  very  succinct  description  of 
the  effect  of  these  statutes  is  extracted  from  a  work  of 
the  greatest  utility  and  accuracy,  Chitty's  Collection  of 
Statutes,  with  notes,  by  Welsby  and  Beavan,  3d  edit., 
2d  vol.,  p.  56  :  "  First,  where  goods,  or  documents  for 
r*4-^01    ^^^^  delivery  of  goods,  are  ^pledged  as  a  security 
for  present  or  future  advances,  with  the  knowl- 
edge that  they  are  not  the  property  of  the  factor,  but 
without  notice  that  he  is  acting  without  authority,  in 
such   a    case    the   pledgee   acquires    an   absolute  lien. 
Secondly,  where  goods  are  pledged  by  a  factor  without 
A' V  notice    to   the   pledgee  that  they  are  the  property  of 
(V,  '     another,  as  a  security  for  ^  pi'e-existing  debt,  in  that  case 
o  Vi  I        the  pledgee  acquires  the  same  right  as  the  factor  had. 
|j'  Thirdly,  where  a  contract  to  pledge  is  made  in  consid- 

eration of  the  delivery  of  other  goods  or  documents  of 
title,  upon  which  the  persons  delivering  them  up  had 
a  lien  for  a  previous  advance  (which  is  deemed  to  be  a 
contract  for  a  present  advance),  in  that  case,  the  pledgee 
acquires  an  absolute  lien  to  the  extent  of  the  value  of 
the  goods  given  up."  It  will  not  fail  to  be  observed 
that  the  persons  whose  dealings  with  property  or  docu- 
ments in  their  possession  are  within  the  protection  of 
these  statutes,  are  persons  entrusted  therewith  as  factors 
or  agents,  (/)  not  persons  to  whose  employment  a  power 

[I]  Jenkyns  v.  Usborne,  7  M.  &  Gr.  (49  E.  C.  L.  R.)  67H ;  Van  Cas- 
teel  V.  Booker,  2  Exch.  691  ;  Kingsford  v.  Merry,  26  L.  J.  (Ex.)  83 ;  1 
n.  &  N.  503,  in  Exch.  Ch. 


\^__^€y^ 


CONTRACTS   BY  WIVES.  430 


of  sale  is  not  commonly  incident,  as  wharfingers,  (???)  and 
that  the  transactions  which  are  within  the  statute  are 
mercantile  transactions,  (w)  The  statute,  therefore,  does 
not  apply  to  advances  *made  upon  the  security 
of  furniture  used  in  a  furnished  house  to  the  L  "^  J 
apparent  owner  of  such  furniture,  such  apparent  owner 
afterwards  appearing  to  be  the  agent  entrusted  with  the 
custody  of  the  furniture  by  the  true  owner.  Such  agent 
is  not  an  agent,  nor  is  such  furniture  goods  and  mer- 
chandise within  the  meaning  of  stat.  5  &  6  Vict.  c. 
39. (o)  Further,  the  person  who  is  to  create  a  pledge 
of  his  principal's  goods,  valid  within  the  protection  of 
these  statutes,  must  be  an  agent  who  is  entrusted  at  the 
time  of  doing  the  act  which  is  to  have  that  effect. 
Therefore,  an  agent  whose  authority  has  been  revoked, 
and  who  wrongfully  retains  possession  of  goods  which 
he  is  bound  to  give  up,  at  the  time  when  he  purports  to 
make  a  pledge,  is  not  an  agent  at  all,  but  a  wrong-doer, 
and  is  not  within  the  acts,  .nor  is  the  pledge  a  transac- 
tion within  their  protection.  (^:)) 

Before  leaving  the  subject  of  contracts  by  agents,  I 
will  advert  to  the  topic  which  in  a  former  lecture  I  re- 
served for  this  period,  that,  namely,  of  a  wife's  power 
to  bind  her  husband  by  contract.  Now  it  is  a  principle, 
as  old  as  the  time  of  Fitzherbert,(§')  that,  whenever  a 
wife's  contract  made  during  marriage  binds  the  husband, 
it  is  on  the  ground  that  she  entered  into  it  as  his  agent.^ 

(m)  Monk  v.  Whittenbury,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  484. 
(n)  Wood  V.  Rowcliffe,  6  Hare  191.  (o)  Ante,  p.  430,  n.  (?i). 

(i>)  Fuentes?;.  Montis,  L.  R.  3  C.  P.  268,  4  C.  P.  93:  s.  c,  37  L.J.  (C. 
P.)  137,  38  Ibid.  95. 

(?)  Fitz.  Nat.  Brev.  27,  C. ;  Ibid.  118,  F. ;  Ibid.  120,  G. 

^  Sawyer  v.  Cutting,  23  Verm.  486  ;  Leeds  v.  Vail,  15"Penn.  St.  185  ; 
Alexander  v.  Miller,  16  Ibid.  215;  Burbv.  Howard,  13  Mo.  241  ;  Swett 
V.  Penrice,  24  Miss.  416.      If  a  husband  allow  his  wife  to  conduct  busi- 


431  smith's  law  of  contracts. 

Thus,  where  the  plaintiff  sold  music  to  a  married  woman 
r*4-'^21    l^^^^o  '^'with  her  husband,  and  sued  the  husband 

for  the  price,  and  the  only  question  left  to  the 
jury  was,  whether  the  music  was  necessary  for  the  wife 
in  her  station,  this  was  held  wrong,  as  the  question 
ought  to  have  been,  whether  the  wife  had  the  husband's 
authority  to  purchase,  (r)  Now,  she  may  be  appointed 
his  agent  in  the  same  way  that  any  other  individual 
may,  either  by  express  words  or  by  implication,  as  I 
have  already  mentioned,  and  you  will  find  that  illus- 
trated by  the  case  of  M'George  v.  Egan.  There  the 
defendant's  wife  had  put  her  brother's  child  to  school 
with  the  plaintiff,  and  the  defendant  had  occasionally 
visited  the  child  at  the  school,  and  was  in  the  habit  of 
paying  for  a  variety  of  articles  ordered  by  his  wife  for 
the  use  of  his  house,  and  amongst  them  he  had  paid  a 
carver  and  gilder's  bill  incurred  by  the  wife ;  although 
it  was  contended  that  these  facts  afforded  no  inference 
that  the  defendant  had  authorized  the  wife  to  incur  the 
debt  claimed  by  the  plaintiff,  the  Court  held,  that  it 
clearly  was  evidence  of  her  having  authority  to  contract 
that  debt,  although  it  was  very  slight,  {s)  For  the  same 
reason,  where  goods  for  which  a  wife  has  ordinarily 
authority  to  contract  on  the  part  of  her  husband,  such 
as  articles  of  dress,  are  ordered  by  her  and  delivered  at 
pjjj.qq-i    his  residence,  where   she  also  resides,  prima 

*facie   the   husband   is  liable. (^)     Thus,-  also, 

[r)  Reid  V.  Teakle,  22  L.  J.   (C.  P.)  161  ;  13  C.  B.  (76  E.  C.  L.  R.) 
627,  s.  c. ;  Lane  v.  Ironmonger,  13  M.  &  W.  368. 
{s)  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  196. 
{t)  Jewsbury  v.  Newbold,  26  L.  J.  (Ex.)  247. 

ness  as  a  trader,  he  is  liable  on  her  contracts :  Godfrey  v.  Brooks,  5 
Harring.  396  ;  Cropsey  v.  M'Kinney,  30  Barb.  47.  The  husband  is 
liable  for  goods  furnished  to  the  wife  suitable  to  tlieir  station  in  life 
when  he  has  knowingly  permitted  the  wife  to  retain  them  :  Gilman  v. 
Andrus,  2  Wms.  241  •,  Ogden  v.  Prentice,  33  Barb.  160. 


CONTRACTS    BY   WIVES.  433 

where  the  plaintiff,  in  order  to  substantiate  a  demand 
for  goods  sold  to  the  defendant,  proved  that  he  had  a 
shop,  in  which  his  wife  served  and  carried  on  the  busi- 
ness of  it  in  his  absence,  and  that,  on  applying  to  her 
for  the  price  of  the  goods,  she  said  she  would  pay  it  if 
he  would  allow  £10,  which  she  claimed,  and  give  a  re- 
ceipt in  full ;  the  Coui't  thought  that  this  was  evidence 
from  which  it  might  be  presumed  that  the  wife  was 
acting  within  the  scope  of  her  authority  when  she 
offered  to  settle  a  demand  for  goods  delivered  at  a  shop 
in  which  she  served,  and  the  business  of  which  she  was 
in  the  habit  of  conducting,  (w)  But,  on  the  other  hand, 
where  she  equally  carried  on  the  business  of  the  shop 
by  her  husband's  authority,  and  attended  to  all  the  re- 
ceipts and  payments,  a  statement  made  by  her  that  she 
would  pay  her  rent  on  the  day  it  would  be  due  if  it  was 
remitted  to  her  by  her  husband  in  time,  and  that  the 
amount  was  £6,  was  held  not  to  be  evidence  against  her 
husband  of  the  terms  of  his.  tenancy.  (^')  The  difference 
is  obvious  between  the  two  cases ;  for,  though  the  wife 
might  be  the  agent  of  her  husband  to  make  payments, 
she  is  not  on  that  account  necessarily  his  agent  to  admit 
an  antecedent  contract.  Therefore,  if  the  admissibility 
of  her  statement  *be  rested  on  the  ground  of  r:i:4^o^-| 
its  being  evidence  of  an  antecedent  lease,  it 
must  fail.  Neither  does  her  agency  to  make  payments 
constitute  her  an  agent  to  take  a  lease  for  the  benefit  of 
her  husband. 

I  am  not,  however,  now  speaking  of  that  sort  of 
agency  which  is  purely  conventional,  and  in  no  way 
depends  on  the  relation  of  husband  to  wife,  inasmuch 
as  it  may  be  conferred  on  any  one  else ;  but  of  another 

(?f)  Clifford  V.  Burton,  1  Bing.  (8  E.  C.  L.  R.)  199. 
[v)  Meredith  v.  Footner,  11  M.  &  W.  202. 


434  smith's  law  of  contracts. 

and  a  peculiar  sort  of  agency,  which  is  implied  from  the 
circumstance  of  two  persons  living  together  as  man  and 
wife,  from  which  circumstance  a  presumption  arises  that 
the  wife  has  authority  to  bind  the  husband  by  her  con- 
tracts for  necessaries  suitable  to  his  fortune  and  rank  in 
life.^  This  is  very  clearly  explained  by  Lord  Holt  in 
Etherington  v.  Parrott, (ri;)  where  he  says: — "It  is  the 
cohabitation  that  is  an  evidence  of  the  husband's  assent 
to  contracts  made  by  his  wife  for  necessaries."  But 
then  this  must  be  taken  subject  to  two  observations  : 
first,  that  the  contract  must  be  for  necessaries ;  secondly, 
that  the  party  making  it  must  not  have  been  forbidden 
to  trust  her. 

Now,  with  regard  to  the  question  what  are  necessa- 
ries, it  is  a  question  which  always  and  obviously  de- 
P^i  opr-i  pends  upon  the  circumstances  of  the  *particu- 
lar  case  under  discussion  for  the  time  being. 
Servants,  suitable  to  the  husband's  fortune  and  rank, 
have  been  held  to  be  such  necessaries  in  a  case  where 
the  defendant  was  Grovernor  of  Barbadoes,  and  his  wife, 
being  about  to  quit  England  in  order  to  join  him  there, 
engaged  the  plaintiff  as  her  maid  to  accompany  her  on 

{x)  Ld.  Raym.  1006  ;  Waithman  v.  Wakefield,  1  Camp.  120.  See 
Jolly  V.  Rees,  33  L.  J.  (C.  P.)  177  •,  15  C.  B.  (N.  S.)  (109  E.  C.  L.  R.) 
628. 

^  This  agency  (the  existence  of  which  is  a  question  for  the  jury,  Lane 
V.  Ironmonger,  13  M.  &  W.  368  ;  Casteel  v.  Casteel,  8  Blackf.  240),  is, 
however,  so  far  as  necessaries  are  concerned,  to  be  presumed  from  the 
mere  fact  of  cohabitation :  M'Cutcheon  v.  M'Gahey,  11  Johns.  281 ; 
Fredd  v.  Eves,  4  Harring.  385  ;  Connerat  v.  Goldsmith,  6  Ga.  14 ;  Hen- 
derson V.  Stringer,  2  Dana  292  ;  so  much' so,  that  it  matters  not  whether 
the  woman  be  really  the  wife  of  the  man  sought  to  be  charged,  or  only 
appear  so  to  be,  if  he  allow  her  to  live  with  him  and  pass  for  his  wife : 
Watson  V.  Threlkeld,  2  Esp.  637  ;  Blades  v.  Free,  9  B.  &  C.  (17  E.  C.  L. 
R.)  167.— R. 

Furlong  v.  Hysom,  35  Me.  332;  Wood  v.  O'Kelly,  8  Cush.  406; 
Mitchell  V.  Treanor,  11  Ga.  324. 


CONTRACTS   BY    WIVES.  435 

the  voyage.  (^)  The  question  is  one  which  is  continually 
arising,  and  of  which  there  are  many  reported  exam- 
ples. Thus,  in  Hunt  v.  De  Blaquire,(^)  articles  of  fur- 
niture for  a  house  were,  under  the  circumstances  of  the 
case,  held  to  be  necessaries. 

But  the  cases  most  frequently  referred  to  on  the  sub- 
ject are  Montague  v.  Benedict  (a)  and  Seaton  v.  Bene- 
dict. (^)  The  name  of  the  defendant  probably  strikes 
you  as  fictitious,  and  in  truth  it  is  so,  being  taken  from 
a  play  of  Shakespeare,  called  Much  Ado  About  Nothing. 
in  which  one  of  the  characters  is  a  young  officer  named 
Benedict,  who  protests  vehemently  against  marriage. 
The  real  defendant  was  a  highly  respectable  professional 
gentleman ;  and  it  was  sought  in  Seaton  v.  Benedict  to 
charge  him  with  a  bill  contracted  by  his  wife  for  arti- 
cles of  millinery  of  a  very  expensive  description.  It 
appeared  at  the  trial  that  she  was  already  supplied  with 
all  necessary  articles  of  dress;  and  the  Court  held,  on 
a  motion  for  a  new  trial,  that  the  *defendant  r^Aon-i 
was  in  point  of  law  entitled  to  the  verdict. 

In  the  other  case  of  Montague  v.  Benedict,  the  goods 
supplied  were  articles  of  jewellery,  to  the  amount  of 
£83,  which  had  been  delivered  in  the  course  of  two 
months.  The  plaintiff's  evidence  was,  that  the  defendant 
lived  in  a  furnished  house  of  which  the  rent  was  £200 
a  year,  and  that  the  lady  had  a  fortune  of  £4000 ;  the 
defendant's  that  the  lady  was  already  supplied  with  suf- 
ficient jewellery.  The  jury  found  a  verdict  for  the 
plaintiff;  but  the  Court  set  it  aside,  on  the  ground  that 
there  Avas  no  evidence  to  support  it.     Mr.  J.  Bayley 

{y)  White  V.  Cuyler,  1  Esp.  200  ;  6  T.  R.  176. 
(z)  5  Bing.  (15  E.  C.  L.  R.)  550. 
(a)  3B.  &C.  (10  E.  C.  L.  R.)  631. 
(6)  5  Bing.  (15  E.  C.  L.  R.)  28. 


436 


SMITH  S   LAW    OF    CONTRACTS. 


said,  "  If  the  husband  and  wife  live  together,  and  the 
husband  will  not  supply  her  with  necessaries  or  the 
means  of  obtaining  them,  then,  although  she  has  her 
remedy  in  the  Ecclesiastical  Court,  yet  she  is  at  liberty 
to  pledge  the  credit  of  her  husbangl  for  what  is  strictly 
necessary  to  her  own  support.  But,  whenever  the  hus- 
band and  the  wife  are  living  together,  and  he  provides 
her  with  necessaries,  the  husband  is  not  bound  by  con- 
tracts of  the  wife,  except  where  there  is  reasonable 
evidence  to  show  that  the  wife  has  made  the  contract 
with  his  assent.  Cohabitation  is  presumptive  evidence 
of  the  assent  of  the  husband,  but  it  may  be  rebutted 
by  contrary  evidence;^  and  when  such  assent  is  proved, 
the  wife  is  the  agent  of  the  husband  duly  authorized." 
Indeed,  the  husband's  assent  during  cohabitation  being 
r*4-S71  ^^^^^  presumed  *to  be  given  to  the  wife's  con- 
tracting for  necessaries  suitable  to  his  degree, 
the  suitableness  of  the  things  contracted  for  is  evidently 
to  be  considered.'  "  It  is .  because  she  is  the  agent  of 
her  husband,"  said  Parke,  B.,  in  Lane  ^^.  Ironmonger,  (<?) 
^'  that  the  tradesman  ought  to  be  careful  not  to  supply 
her  to  an  extravagant  extent.  For,  giving  orders  to 
such  an  extent  would  go  to  show  that  she  was  not  act- 
ing as  the  husband's  agent,  and  to  the  extent  author- 
ized by  him." 

The  before-mentioned  observations  of  Mr.  J.  Bayley 

*  support  the  latter  of  the  two  rules  to  which  I  adverted, 
.  namely,  that  the  contract  must  not  only  be  for  necessa- 

•  ries  suitable  to  the  husband's  fortune  and  degree,  but 

(c)  13  M.  &  W.  368. 


^  As,  for  instance,  by  showing  that  the  tradesman  gave  credit  to  the 
wife  herself:  Conuerat  v.  Goldsmith,  6  Ga.  14. — r. 
Swett  V.  Penrice,  24  Miss.  416. 


CONTRACTS    BY   WIVES.  437 

that  the  person  making  it  must  not  have  been  forbidden 
to  contract  with  the  wife  on  his  account.^ 

This  point,  indeed,  had  been  decided  long  before  by 
the  majority  of  the  judges  in  the  Exchequer  Chamber, 
in  the  case  of  Manby  v.  Scott,  {d)  The  discussions  in 
this  case  were  exceedingly  long  and  elaborate ;  and,  as 
frequently  happens  in  the  old  reports,  the  reasons  given 
in  some  instances  almost  ludicrous ;  for  instance,  Mr. 
Justice  Twisden,  who  was  at  first  of  opinion  that  it  was 
not  in  the  husband's  power  to  prohibit  another  from 
trusting  his  wife  for  necessaries,  gave  as  a  reason  that, 
if  he  flight  prohibit  one  person,  he  might  go  r^^^oo-i 
on  doing  so  till  he  had  at  last"  prohibited  every 
one  in  England ;  and  then,  says  he,  "  If  the  husband 
should  adopt  this  method,  and  join  the  King's  enemies, 
the  wife  must  go  too,  and  then  she  will  be  hanged — or 
stay  at  home,  and  then  she  will  be  starved."  However, 
the  majority  of  the  Court  were  of  opinion  that  the  husband 
may  prohibit  a  particular  person  from  trusting  his  wife 
even  for  necessaries,  and  that,  if  he  trust  her  in  defiance 
of  that  prohibition,  he  cannot  hold  the  husband  liable.^ 

[d)  1  Lev.  4;  1  Siderfin  109 ;  2  Smith's  L.  C.  396,  6th  ed. ;  Bac.  Abr. 
"  Baron  and  Feme.'''' 

^  When  a  party  has  been  expressly  forbidden  to  ^lye  credit  to  a  wife, 
in  order  to  render  the  husband  liable  for  subsequent  su.{3plies,  it  is  in- 
cumbent on  the  party  so  forbidden  to  show  aflBirmatively  and  clearly  that 
the  husband  did  not  supply  her  with  necessaries  suitable  to  her  condi- 
tion in  life  :  Keller  v.  Phillips,  40  Barb.  390. 

■^  It  must  not,  however,  be  supposed  that  a  husband  will  not  be  liable 
for  necessaries  furnished  the  wife,  when  he,  without  fault  on  her  part, 
refuses  to  supply  her  with  them,  even  although  he  may  have  given  notice 
not  to  trust  her.  It  is  only  when  he  himself  supplies  her  with  neces- 
saries that  a  notice  will  be  effectual  to  protect  him  :  Botch  v.  Miles,  2 
Conn.  638  ;  Kimball  v.  Keyes,  II  Wend.  33  ;  Emery  v.  Neighbor,  2 
Halst.  142  ;  Billing  v.  Pitcher,  7  B.  Mon.  458  ;  Fredd  w.-Eves,  4  Earring. 
385  ;  and  it  would  seem  that  in  any  case  notice  by  newspaper  is  insuffi- 
cient, unless  it  was  proved  to  have  reached  the  party  who  supplied  the 


438 


SMITH  S   LAW    OF    CONTRACTS. 


[=•■^439] 


The  husband's  power  to  restrain  his  wife's  authority 
to  bind  him  seems  practically  enlarged  to  a  considerable 
extent  by  the  recent  case  of  Jolly  t;.  Rees.(e)  There 
it  was  held,  "  that  the  presumption  which  exists  during 
cohabitation,  and  from  that  circumstance,  that  the  hus- 
band assents  to  contracts  made  by  the  wife  for  necessa- 
ries suitable  to  his  degree,  may  he  rebutted  hy  sJioiving 
that  he  has  forbidden  his  imfe  to  pledge  his  credit,  although 
no  notice  of  that  fact  has  been  communicated  to  the  trades- 
manr{f) 

The  points  which  we  have  been  hitherto  considering 
all  arise  in  cases  in  which  the  husband  and  wife  continue 
to  live  together.  But  if  the  wife,  when  she  makes  the 
contract,  is  living  separated  *from  her  husband, 
the  case  is  quite  different ;  and  the  only  ques- 
tion is,  whether  the  separation  is  with  the  husband's 

(e)  15  C.  B.  (N.  S.)  (109  E.  C.  L.  R.)  628  ;  33  L.  J.  (C.  P.)  177. 
(/)  2  Smith's  L.  C.  443,  6th  ed.  (note  to  Manby  v.  Scott.) 

articles :  Fredd  i\  Eves.  In  such'  cases  as  these  the  husband  is  liable 
without  his  assent,  and  hence  his  liability  necessarily  rests  on  other 
grounds  than  those  springing  from  the  law  of  principal  and  agent,  as  is 
clearly  shown  in  the  American  note  to  Manby  v.  Scott,  2  Smith's  Lead. 
Cases  378. — r. 

Harshaw  v.  Merryman,  18  Mo.  106.  The  husband  is  bound  to  pay 
for  necessaries  furnished  to  the  wife,  unless  he  has  made  other  suitable 
provision  for  her  :  Tebbets  v.  Ilapgood,  34  N.  H.  420.  Recovery  can  be 
had  for  supplies  to  a  wife  during  separation  only  when  it  was  caused  by 
the  misconduct  of  the  husband,  or  was  by  mutual  consent  without  ade- 
quate allowance  for  the  wife's  support :  Reese  v.  Chilton,  26  Mo.  598.  It 
is  wholly  unaffected  by  the  creditor's  knowledge  or  ignorance  of  the 
facts  on  which  the  liability  depends  :  Gill  v-.  Read,  5  R.  I,  343.  And 
see  further,  Williams  v.  Coward,  1  Grant  21.  If  a  wife  leave  her  hus- 
band without  his  consent  or  fault,  he  is  not  liable  even  for  necessaries, 
unless  furnished  by  his  orders  :  Collins  v.  Mitchel,  5  Ilarring.  369  ;  Kemp 
Downham,  Ibid.  417  ;  Pool  v.  Everton,  5  Jones  (Law)  241 ;  Morgan  v. 
Hughes,  20  Tex.  141  •,  Black  v.  Bryan,  18  Ibid.  453  ;  Decelles  v.  Cad- 
mus, 8  Clarke  51 ;  Mayhew  v.  Thayer,  8  Gray  172  ;  Rea  v.  Durkee,  25 
IlL  503  •,  Cromwell  v.  Benjamin,  41  Barb.  558.  As  to  what  are  neces- 
saries, see  Hall  v.  Weir,  1  Allen  261. 


CONTRACTS    BY   AVIYES.  439 

assent,  or  produced  by  the  husband's  misconduct.  If 
the  husband  driYC  his  wife  from  home,  or  if  he  do  so 
misconduct  himself  that  it  is  morally  impossible  and 
unreasonable  that  she  should  continue  to  reside  in  his 
house,  he  sends  her  into  the  world  with  authority  to 
pledge  his  credit  for  her  necessary  expenses.  And 
this  authority  he  cannot  revoke  or  control  by  any  notice 
or  prohibition  whatever.  "  If  a  man,"  said  Lord  Eklon, 
in  Rawlyns  v.  Vandyke, (^)  "will  not  receive  his  wife 
into  his  house,  or  turns  her  out  of  doors,  he  sends  her 
with  credit  for  her  reasonable  expenses." — "  Where  a 
wife's  situation  in  her  husband's  house,"  says  Lord 
Kenyon,  in  .Hodges  v.  Hodges,  {h)  "  is  rendered  unsafe 
from  his  cruelty  and  ill-treatment,  I  shall  rule  it  to  be 
equivalent  to  his  turning  her  out  of  the  house,  and  that 
the  husband  shall  be  liable  for  necessaries  furnished  to 
her  under  those  circumstances." (/)^  Even  if  the  hus- 
band became  lunatic,  and  therefore  unable  to  provide 
his  wife  with  necessaries,  he  is  in  the  same  situation  as 

ig)  3  Esp.  250. 
{h)  1  Esp.  441. 

(^)  See  Ilouliston  v.  Smyth,  3  Bing.  (11  E.  C.  L.  R.)  127  ;  Bolton  v. 
Prentice,  Str.  1214. 

^  See  also  Sykes  v.  Halstead,  1  Sand.  483;  Rutherford  v.  Coxe,  11  Mo. 
347  ;  Evans  v.  Fisher,  5  Gilm.  569  ;  Fredd  v.  Eves,  4  Harring.  385  ; 
Pidgin  V.  Cram,  8  N.  H.  350  ;  Clement  v.  Mattison,  3  Rich.  93.  And  it 
is  not  necessary  that  actual  bodily  cruelty  should  be  used  to  her,  as  it 
has  been  held  (overruling  Harwood  i\  Heffer,  3  Taunt.  421)  that  if  a 
husband,  by  bringing  another  woman  to  live  under  his  roof  as  a  mis- 
tress, thereby  renders  his  house  unfit  for  the  residence  of  his  wife,  he  is 
bound  to  provide  her  with  necessaries  during  the  separation  :  Aldis  v. 
Chapman,  T.  T.  SQ  Geo.  III.,  cited  1  Selwyns  N.  P.  272 ;  Houliston  c. 
Smyth,  3  Bing.  (11  E.  C.  L.  R.)  127  ;  Blowers  v.  Sturdevant,  4  Denio 
49.  As  in  the  case  of  an  infant,  however,  the  husband  is  not  liable  for 
money  lent  to  enable  her  to  procure  necessaries :  Walker  i\  Simpson, 
7  W.  &  S.  88.— k.  And  see  Swoon  v.  Blair.  1  Dutch.  94.  If  the  hus- 
band secures  to  the  wife  a  separate  maintenance,  and  pays  it,  he  is  not 
liable  :  Calkins  v.  Long,  22  Barb.  97. 


439  smith's  law  of  contracts. 

a  husband  omitting  to  furnish  them.(/)     But  the  au- 
thority of  the  wife  to  jDledge  her  husband's  credit  is  no 

r.!-^^A-t    areater  in  the  case  of  a  ''lunatic  than  in  the 
rM40]    ^ 

ordinary  case  of  husband  and  wife,  [k) 

In  like  manner,  if  the  husband  and  wife  mutually 
consent  to  live  apart,  she  has  a  right  to  bind  him  by 
contracting  for  her  reasonable  and  necessary  expenses 
as  long  as  the  consent  continues.  (/)^  But  in  those  cases 
in  which  the  wife,  living  apart  from  her  husband,  has 
authority  to  bind  him  by  contracts  for  necessaries,  if  he 
allow  and  pay  her  a  sufficient  maintenance,  the  authority 
is  gone,  and  her  contracts,  even  for  necessaries,  will  not 
bind  him  ;  the  reason  of  which  is,  that  the  authority  is 
given  by  law  for  the  wife's  protection,  to  save  her  from 
distress  occasioned  by  her  husband's  misconduct;  but 
if  he  make  her  a  proper  allowance,  and  pay  it,  there  is 
no  such  danger;  and  then  cessanie  ratione  cessat  lex ^ 
thus  in  Mizen  v.  Pick,(wz)  the  Court  of  Exchequer  de- 
cided that  it  makes  no  d.ifference  that  the  tradesman, 
when  he  trusts  the  wife,  has  no  notice  that  her  husband 
makes  her  an  adequate  allowance.^   And  if  the  wife  when 

(^■)  Read  v.  Legard,  6  Ex.  636  ;  and  see  ante^  p.  324. 

[k)  Richardson  v.  Du  Bois,  L.  R.  5  Q.  B.  51,  39  L.  J.  (Q.  B.)  69. 

[I)  Hodgkinson  v.  Fletcher,  4  Camp.  70  •,  Nurse  v.  Craig,  2  Bos.  &  P. 
N.  R.  148. 

(m)  3  M.  &  W.  481  ;  Johnson  v.  Sumner,  27  L.  J.  (Ex.)  341 ;  3  H.  & 
N.  261.  See  Jolly  v.  Rees,  15  C.  B.  (N.  S.)  (109  E.  C.  L.  R.)  628  ;  33  L. 
J.  (C.  P.)  177  ;  Biffin  v.  Bignell,  31  L.  J.  (Ex.)  189  ;  7  H.  &  N.  877. 

1  And  not  only  for  necessaries  furnished  to  herself,  but  to  the  children 
of  the  marriage,  if  he  suffer  them  to  remain  with  her  :  Rumney  jj.Keyes, 
6  N.  H.  571  ;  Kimball  v.  Keyes,  11  Weiid.  33. — r.  Walker  v.  Laighton, 
11  Fost.  111. 

^  Cany  v.  Patton,  2  Ashm.  140  ;  Baker  v.  Barney,  8  Johns.  72  ;  Fen- 
ner  v.  Lewis,  10  Ibid.  38  ;  Mott  v.  Comstock,  8  Wend.  544  ;  Kimball  v. 
Keyes,  11  Ibid.  33.— r. 

^  The  same  point  had  been  so  previously  decided  in  this  country  in 
Cany  v.  Patton,  2  Ashm.  140. — r. 


CONTRACTS    BY   WIVES.  440 

living  separate  has  a  sufficient  maintenance,  though  not 
paid  by  her  liusband,  supplies  furnished  to  her  cannot 
be  necessaries  for  which  he  is  liable.  (?z) 

*Thus,  you  see  that  if  the  wife  be  driven  from  psi^^^i  -i 
home  by  the  husband's  misconduct,  or  if  they 
separate  by  mutual  consent,  she  carries  with  her  an  im- 
plied authority  to  pledge  his  credit  so  long  as  that  sepa- 
ration continues,  unless  he  pay  her  an  allowance  adequate 
to  her  support  and  his  own  means.  But,  when  the  sepa- 
ration is  occasioned  neither  by  his  misconduct  nor  con- 
sent, the  case  is  otherwise.  In  such  case  she  has  no 
authority  at  all  to  pledge  her  husband's  credit,  and  the 
person  who  contracts  with  her"  does  so  at  his  peril,  (o)-^ 
And  where  a  married  woman  is  found  living  apart  from 

[n]  Clifford  i'.  Laton,  M.  &  M.  (22  E.  C.  L.  R.)  101  ;  see  also  Richard- 
son V.  Du  Bois,  5  L.  R.  Q.  B.  51,  39  L.  J.  (Q.  B.)  69. 

(o)  Hardie  v.  Grant,  8  C.  &  P.  (34  E.  C.  L.  R.)  512  ;  Morris  v.  Mar- 
tin, Str.  647. 

^  And  it  is  immaterial  whether  he  does  or  does  not  know  of  the  wife's 
having  left  her  husband  :  Hunter  v.  Boucher,  3  Pick.  289  ;  M'Cutchen 
V.  M'Gahay,  11  Johns.  281  ;  Walker  v.  Simpson,*?  W.  &  S.  88  ;  Evans 
V.  Fisher,  5  Gilm.  569.  The  rule  admits  of  no  exception,  of  course,  in 
the  case  of  necessaries  :  Williams  v.  Prince,  3  Strobh.  490.  And  even 
if  the  husband  and  wife  have  separated  by  mutual  consent,  and  the  wife 
iroes  to  live  in  the  house  of  a  third  person,  with  whom  the  husband 
makes  a  contract  to  support  her,  if  she  leave  the  house  of  that  person 
voluntarily  and  without  just  cause,  she  will  carry  with  her  no  authority 
to  pledge  his  credit  for  her  support,  though  if  she  were  driven  from  that 
house  by  improper  usage,  it  would  be  different :  Pidgin  v.  Cram,  9  N.  H. 
350.  In  case,  however,  the  wife  should  return  to  her  husband,  or  even 
should  in  good  faith  offer  to  return  to  him  (and  the  question  of  such 
good  faith  is  one  upon  the  evidence  for  the  jury  :  Cunningham  v.  Irwin, 
7  S.  &  W.  259),  his  liability  is  revived  from  the  time  of  such  return  or 
offer  :  Harris  v.  Morris,  4  Esp.  42  ;  M'Gahay  v.  Williams,  12  Johns. 
293  ;  Henderson  v.  Stringer,  2  Dana  292 ;  Rennick  v.  Ficklin,  3  B.  Mon. 
166  ;  Cunningham  v.  Irwin,  supra  ;  Blowers  v.  Sturdevant,  4  Denio  45. 
The  husband  is  not,  however,  liable  for  anything  furnished  to  the  wife 
during  the  interval  between  her  leaving  him  and  her  return :  Williams 
V.  Prince,  3  Strobh.  490.— r. 
30 


441 


SMITH  S    LAW    OF   CONTRACTS. 


her  husband,  the  iwimd  facie  presumption  is,  that  it  is 
neither  in  consequence  of  his  improper  conduct  nor  by 
his  assent,  and  therefore  it  always  lies  on  the  person 
who  gave  her  credit  to  show  what  were  the  circum- 
stances under  which  they  separated. (j(?) 

It  only  remains  to  observe  that,  where  the  wife,  in 
consequence  of  the  circumstances  under  which  she  sepa- 
rated from  her  husband,  has  authority  to  bind  him  by 
contracts,  those  contracts  must  be  for  necessaries  suita- 
ble to  his  rank  and  means.  What  are  such  necessaries, 
is  a  question  which  of  course  turns  on  the  particular 


[*442] 


circumstances  of  each  *case.(5')     There  are  two 


modern  cases  involving  rather  singular  ques- 
tions :  Turner  z;.  Rookes,(r)  and  Grindelle^.  Godmond.(5) 
In  Turner  v.  Rookes  the  husband  and  wife  were  living 
separately  by  consent,  under  a  deed  of  separation,  by 
which  she  had  a  separate  maintenance  of  £112  a  year; 
so  that,  as  long  as  that  was  paid,  she  would  have  no 
authority  to  bind  the  husband  for  necessaries  of  an  ordi- 
nary description*;  but  it  appeared  that  the  husband  had 
used  threats  of  violence  towards  her,  which  occasioned 
her  so  much  alarm  that  she  thought  it  necessary  to  ex- 
hibit articles  of  the  peace  against  him.  In  order  to  do 
this  she  was  obliged  to  employ  an  attorney,  and  not 
being  able  to  pay  his  bill  of  costs,  he  brought  his  action 
to  recover  it  against  the  husband.     The  Court  held  that 

(p)  Reed  v.  Moore,  5  Car.  &  P.  (24  E.  C.  L.  R.)  200  ;  Main^ya'ring  v. 
Leslie,  M.  &  M.  IS  ;  Edwards  v.  Towells,  5  M.  &  G.  (44  E.  C.  L.  R.)  624. 

(2)  Hunt  V.  De  Blaquiere,  5  Bing.  (15  E.  C.  L.  R.)  550;  Ewers  «. 
Hutton,  3  Esp.  255,  See  also  Ambrose  v.  Harrison,  20  L.  -J.  (C.  P.) 
135;  10  C.  B.  (70  E.  C.  L.  R.)  776;  Bradshaw  v.  Beard,  31  L.  J. 
(C.  P.)  273;  12  C.  B.  (N.  S.)  (104  E.  C.  L.  R.)  344.  In  the  last  two 
cases  the  husband  was  held  liable  for  the  funeral  expenses  of  his  wife, 
who  was  living  apart  from  him. 

(r)  lOA.  &E.  (37  E.  C.  L.  R.)  37. 

\s)  5  A.  &  E.  (31  E.  C.  L.  R.)  755. 


CONTRACTS    BY    WI\^S.  442 

the  proceeding  was  necessary  for  the  wife's  safety ;  and, 
therefore,  that  she  had  a  right  to  bind  the  husband  by 
contracting  for  it ;  and  that,  though  the  maintenance 
allowed  her  might  be  sufficient  for  ordinary  purposes, 
yet  this  was  an  extraordinary  contingency  not  likely  to 
have  been  contemplated  in  arranging  the  amount  of 
maintenance,  and  which  therefore  was  not  covered  by 
it;  and  they  held  the  husband  ^liable,  as  hav-  r;i:44o-| 
ing,  through  his  wife,  employed  the  attorney  to 
exhibit  articles  of  the  peace  against  himself. 

The  other  case  was  one  in  which  the  husband  had 
assaulted  and  ill-treated  his  wife,  who  preferred  an  in- 
dictment against  him  at  the  Beverley  sessions,  upon 
which  he  was  convicted,  and  sentenced  to  twelve  months' 
imprisonment,  and  a  fine  of  £dO.»  The  attorney,  who 
conducted  the  prosecution,  thinking,  very  correctly,  that 
if  he  carried  it  on  without  funds,  he  would  have  no 
remedy  against  any  one,  required  money  in  hand,  which 
the  lady  borrowed  from  her.  brother,  and  he  brought  an 
action  against  the  husband  to  be  reimbursed ;  but  the 
Court  thought  that,  though  it  might  be  necessary  that 
she  should  exhibit  articles  of  the  peace  for  her  own  per- 
sonal security,  yet  that  it  could  not  be  necessary  that 
she  should  assume  the  offensive,  and  prefer  an  indictment 
against  him,  and,  consequently,  that  the  plaintiff  was  not 
entitled  to  recover.  In  a  later  case  upon  this  subject,  the 
costs  of  a  proctor  employed  by  a  wife  to  prosecute  a  suit 
in  the  Ecclesiastical  Court  against  her  husband  for  a 
divorce  a  mensd  et  thoro,  on  the  ground  of  cruelty,  were 
held  to  be  recoverable  against  the  husband,  as  a  neces- 
sary, if  it  appeared  that  there  were  reasonable  grounds 
for  instituting  such  a  suit ;  for  where  there  had  been 
cruelty  such  a  divorce  might  be  necessary  for  the  pro- 
tection of  the  wife,  and  where  she  had  no  means  of  her 


444 


SMITH  S    LAW   OF    CONTRACTS. 


[*444] 


own  she  would  *lose  that  protection,  unless  she 


could  pledge  her  husband's  credit,  (t)  In  a  still 
more  recent  case(i*)  the  legal  expenses  incurred  by  a 
deserted  wife, —  (1)  preliminary  and  incidental  to  a  suit 
for  restitution  of  conjugal  rights  ;  (2)  in  obtaining  coun- 
sel's opinion  on  the  effect  of  an  ante-nuptial  agreement 
for  a  settlement ;  (3)  in  obtaining  professional  advice  as 
to  the  proper  mode  of  dealing  with  tradespeople,  who 
were  pressing  her  to  pay  them  for  necessaries  supplied 
to  her  since  she  had  been  deserted,  and  also  of  prevent- 
ing a  distress  threatened  on  furniture  belonging  to  her 
husband  in  the  house  she  occupied ;  were  held  to  be 
necessaries  for  which  she  had  implied  authority  to  pledge 
his  credit. 

The  wife  also  ma^  under  some  circumstances  pledge 
her  husband's  credit  for  such  necessaries  for  their  chil- 
dren as  may  be  reasonable  with  reference  to  the  hus- 
band's station.  Thus,  in  Bazeley  v.  rorder,(:i;)  the 
plaintiff,  on  the  order  of  the  defendant's  wife,  supplied 
clothes  for  the  defendant's  child ;  the  wife  was  living 
separate  from  him,  for  reasons  which  justified  her  doing 
so,  and  the  child,  which  was  under  seven  years  of  age, 
was  living  with  her,  against  the  defendant's  will,  an 
order  of  the  Master  of  the  Rolls  having  been  made, 
under  *2  &  3  Vict.  c.  54,  giving  the  wife  the 
custody.  The  wife  had  no  means  adequate  to 
support  her  according  to  her  husband's  degree.  It  was 
held,  that,  as  the  child  was  by  law  properly  in  the  care 
of  the  wife,  the  reasonable  expenses  of  providing  for 
it  were  part  of  the  reasonable  expenses  of  the  wife,  for 
which  she  had  authority  to  pledge  her  husband's  credit. 

(0  Brown  v.  Ackroyd,  25  L.  J.  (Q.  B.)  193 ;  5  E.  &  B.  (85  E.  C.  L. 
R.)  819,  826,  per  Lord  Campbell,  C.  J. 

{u)  Wilson  V.  Ford,  L.  R.  3  Ex.  63,  37  L.  J.  (Ex.)  60. 

(x)  L.  R.  3  Q.  B.  559,  37  L.  J.  (Q.  B.)  237  ;  in  Ex.  Ch.  9  B.  &  S.  725. 


P445] 


REMEDIES.  445 

The  whole  of  this  branch  of  the  law  may  be  shortly 
summed  up  thus:  while  a  wife  continues  to  live  with 
her  husband,  the  presumption  is  that  she  has  authority  | 
to  bind  him  by  contracting  for  necessaries ;  but  that  pre- 
sumption is  subject  to  be  rebutted.  When  she  is  living 
separately  from  him,  the  presumption  is  that  she  has  no  | 
such  authority;  but  that  presumption  also  is  subject  to 
be  rebutted,  by  showing  that  the  separation  was  by  con- 
sent, or  occasioned  by  the  husband's  misconduct;  in 
which  cases,  if  he  leave  her  without  adequate  funds  for 
her  support,  she  has  a  right  to  pledge  his  credit  by  con- 
tracting for  necessaries. 

I  have  now  gone  through  the  subject  which  I  pro- 
posed at  the  commencement  of  these  lectures,  with  the 
exception  of  the  last  point.  I  haA^e  made  mention  of 
the  different  sorts  of  contracts,  the  peculiarities  of  those 
by  record,  by  writing  sealed  and  delivered,  and  writing 
not  under  seal ;  of  the  consideration  which  a  simple  con- 
tract requires  to  support  it-;  of  the  effect  of  illegality, 
whether  by  common  or  statute  law,  in  invalidating  con- 
tracts; *of  the  competency  of  the  parties,  and  p:j^4p-] 
of  the  rules  which  govern  contracts  entered  into 
by  those  parties  through  the  medium  of  agents. 

It  remains  to  point  out,  in  a  few  words,  the  remedies 
by  which  the  observance  of  contracts  may  be  enforced, 
and  their  non-observance  punished.  Now,  I  say  nothing 
about  the  remedy  in  Courts  of  equity.  There  a  specific 
performance  may,  as  you  know,  in  many  cases  be  com- 
pelled; there  loaB  no  such  thing  as  a  specific  perform- 
ance to  be  had  in  a  Court  of  law,  except  in  the  cases  to 
which  the  writ  of  mandamus  was  applicable,  which  could, 
however,  never  be  obtained  when  there  was  any  other 
remedy.  And  although  by  the  provisions  of  the  Com- 
mon Law  Procedure  Act,  1854  (17  &  18  Vict.  c.  125) 


446 


SMITHS   LAW    OF    CONTRACTS. 


ss.  68-74,  the  remedy  oi  mandajiiiis  has  been  extended, 
yet  by  the  construction  put  by  the  Courts  of  Common 
Law  on  those  provisions,  the  compelling  specific  per- 
formance in  private  contracts  cannot  be  said  to  be  within 


[*447] 


their  jurisdiction,  [t/)     *For  it  was  held  by  the 


Court  of  Queen's  Bench  to  be  quite  clear  that 
the  statute  did  not  intend  to  give  a  Court  of  Common 
Law  the  power  to  decree  specific  performance  of  a  pri- 
vate contract ;  and  where  the  duty  sought  to  be  enforced 
by  a  mandamus  arises  merely  upon  a  personal  contract, 
to  grant  a  mandamus  would  be  in  effect  to  decree  spe- 
cific performance  of  such  a  contract.  (0)  Where,  there- 
fore, the  i^laintiff  agreed  to  let,  and  the  defendant  to 
take,  a  certain  house  upon  lease  for  seven  years  from  a 
day  ensuing,  the  lease  to  be  prepared  at  defendant's  ex- 
pense and  executed  within  three  months,  and  thereupon 
the  plaintiff  did  prepare  the  lease,  but  the  defendant  re- 
fused to  execute  it,  upon  which  the  plaintiff  sued  him, 
and  in  his  declaration,  claimed  a  writ  of  mandamus  ac- 
cording to  section  68  of  the  Common  Law  Procedure 
Act,  1854,  the  Court  held  that  that  Act  did  not  extend 
to  enforce  this  duty,  which  arose  out  of  a  contract 
merely  personal,  (a)     But  where  the  duty  does  not  arise 

[y]  As  to  the  concurrent  administration  of  law  and  equity  by  the 
High  Court  of  Justice,  when  the  "  Supreme  Court  of  Judicature  Act, 
1873,"  (36  &  37  Vict.  c.  66),  comes  into  operation,  viz.,  on  Nov.  2d 
1874,  see  ss.  24  and  25  of  that  Act.  As  regards  specific  performance, 
however,  it  must  be  remembered  that  the  rule  of  equity  is  not  to  decree 
specific  performance  of  contracts  relating  to  pei'sonalty,  where  damages 
are  an  adequate  compensation  (see  Cuddee  v.  Rutter,  1  AVhite  &  Tudor 
L.  C.  in  Equity,  p.  709,  3d  ed.,  and  the  notes  thereto).  A  large  propor- 
tion of  the  cases  considered  in  this  work  will  be  found  to  fall  within  this 
category. 

(z)  Norris  v.  Irish  Land  Company,  27  L.  J.  (Q.  B.)  115  ;  8  E.  &  B. 
(92  E.  C.  L.  R.)  512. 

(a)  Benson  v.  Paul,  25  L.  J.  (Q.  B.)  274 ;  6  E.  &  B.  (88  E.  C.  L.  R.) 
273,  s.  c. 


REMEDIES.  '  447 

from  a  merely  personal  contract,  but  under  a  statute  or 
a  Royal  charter,  and  the  act  to  be  done  is  one  in  which 
the  public  as  well  as  the  plaintiff  are  interested,  then 
the  statute  clearly  applies.  Therefore,  where  a  company 
was  incorporated  by  Royal  charter,  which  required  that 
provision  should  be  made  in  the  deed  of  settlement  for 
the  due  registration  of  the  ^shareholders,  and  rj^^Q-i 
the  deed  provided  that  a  register  of  share- 
holders should  be  regularly  kept  and  that  the  personal 
representative  of  a  deceased  shareholder  should  be  en- 
titled to  be  registered  as  the  owner  of  his  shares  on  per- 
forming certain  conditions  ;  such  representative,  having 
performed  those  conditions,  brought  an  action  against  the 
company  for  not  registering  him,  and  claimed  in  his  de- 
claration a  mandamus  to  the  company  to  put  him  on  the 
register:  the  Court  held  that  the  plaintiff  was  entitled 
to  this  mandamus  by  virtue  of  section  68.  (Z»)  In  this 
case,  the  company,  being  incorporated  by  charter,  wrong- 
fully refused  to  register  the  plaintiff  as  a  shareholder, 
which  they  were  bound  to  do  pursuant  to  the  deed  of 
settlement  executed  in  compliance  with  the  charter; 
there  was,  therefore,  a  public  duty  to  be  done,  and  a 
personal  grievance  to  be  redressd. 

It  has  been  thought  that  the  mandamus  given  by  this 
statute  can  be  granted  only  in  respect  of  such  duties  as 
might  have  been  enforced  by  the  prerogative  writ  of 
mandamus;  but  it  rather  seems  that  it  is  not  to  be  con- 
fined to  such  cases.  ((?) 

The  ordinary  remedy  in  a  court  of  law  for  breach 
of  contract  still   is  by  action,  and   there   are   distinct 

{h)  Xorris  v.  Irish  Land  Company,  supra.  See  Webb  v.  Commis- 
sioners of  Heme  Bay,  L.  R.  5  Q.  B.  042,  89  L.  J.  (Q.  B.)  221 ;  Fotlierby 
V.  Metropolitan  Rail.  Co.,  2  C.  P.  188,  36  L.  J.  (C.  P.)  .88. 

(c)  Benson  v.  Paul,  supra ;  Bush  v.  Beavan,  1  H.  &  C.  500,  32  L.  J. 
(Ex.)  54. 


449 


SMITHS    LAW    OF    CONTRACTS. 


[*449] 


*forms  of  action  applicable  to  the  breach  of  dis- 


tinct species  of  contract,  (c?) 

If  the  contract  be  by  record,  the  remedy  is  by  writ 
of  scire  facias,  which  lies  only  upon  a  record,  and  which 
has  obtained  its  name  from  the  Latin  words  it  formerly 
contained,  commanding  the  sheriff  to  make  the  defend- 
ant know  that  the  Court  commanded  his  appearance  to 
answer  why  execution  should  not  issue  against  him. 
But,  in  the  cases  in  which,  by  reason  of  lapse  of  time 
or  change  of  parties  since  a  judgment  had  been  obtained, 
the  proceeding  was  formerly  by  sci.  fa.,  the  parties  may 
now  have  the  same  benefit  by  a  suggestion  entered  by 
leave  of  the  Court  upon  the  roll,  or  by  a  writ  of  revivor. 
This  is  by  virtue  of  the  Common  Law  Procedure  Act, 
1852,  15  &  16  Vict.  c.  76,  ss,  128,  129. 

If  the  record  create  a  debt,  that  is,  render  a  sum  cer- 
tain payable  by  the  one  party  to  the  other,  an  action  of 
debt  will  lie  to  enforce  payment,  if  the  plaintiff  prefer 
that  form  of  proceeding  to.  a  scire  facias. 

The  action  of  debt  lies  in  every  case  where  there  is 
a  liquidated  pecuniary  duty  from  one  person  to  another. 
In  such  case  judgment  by  default  is  final,  {e) 

*If  the  contract  be  by  deed,  the  remedy  is 
by  action  of  covenant,  which  lies  to  enforce  a 
contract  by  deed,  for  which  it  is  the  only  remedy  at 
common  law,  unless  the  contract  be  for  payment  of  a 
liquidated  sum,  in  which  case,  as  I  have  already  said, 
the  plaintiff  may,  if  he  prefer  it,  maintain  an  action  of 
debt.  If  the  contract  be  neither  by  record  nor  by  deed, 
— if,  in  other  words,  it  be  a  simple  contract,  either  re- 

[d)  As  to  forms  of  action,  on  and  after  November  2d  1874,  when  the 
Supreme  Court  of  Judicature  Act,  1873,  36  &  37  Vict.  c.  66),  has  come 
into  operation,  see  schedule  to  that  Act,  rule  1. 

(e)  Common  Law  Procedure  Act,  1852,  15  &  16  Vict.  c.  76,  s.  93. 


[*450] 


REMEDIES. ACTION.  *  450 

duced  to  writing,  or  by  mere  words  without  writing, — 
the  remedy,  unless  it  be  for  payment  of  a  fixed  sum  of 
money,  in  which  case  debt  also  will  lie,  is  by  an  action 
of  assumpsit.  This  was  originally  a  sort  of  action  of 
trespass  upon  the  case,  and  was  called  assumpsit  from 
the  words  "undertook  and  promised,"  which  always  ap- 
peared in  the  declaration.  When  the  uniformity  of  Pro- 
cess Act(/)  was  passed,  the  schedule  contained  a  form 
of  writ  in  which  it  was  described  as  an  action  on  prom- 
ises ;  in  consequence  of  which  it  is  now  most  commonly 
denominated  an  action  on  promises.  It  is  the  great 
remedy  upon  the  breach  of  simple  contracts. 

There  is,,  besides,  a  sort  of  action  called  an  action  of 
account,  which  was  for  a  long  time  almost  completely 
obsolete  and  disused,  but  afterwards  rose  again  into 
some  importance  in  consequence  of  a  decision  of  the 
Court  of  Exchequer,  (^)     But  this  *species  of  ^ 

action  has  now  become  totally  disused,  in  con-  ■-  -• 
sequence  partly  of  the  greater  use  now  made  of  arbitra- 
tion, but  chiefly  in  consequence  of  the  provision  in  the 
Common  Law  Procedure  Act,  1854,  (^)  that  if,  after  a^  ^  Lr^ 
writ  has  been  issued,  it  be  made  to  appear  to  the  satis-  .  ^aJr 
faction  of  the  Court  or  a  Judge,  upon  the  application  of 
either  party,  that  the  matter  in  dispute  consists  wholly 
or  in  part  of  matters  of  mere  account,  which  cannot  con- 
veniently be  tried  in  the  ordinary  way,  the  Court  or 
Judge  may  decide  such  matter  in  a  summary  manner, 
or  order  that  such  matter,  either  wholly  or  in  part,  be 
referred  to  an  arbitrator;  and  the  decision  or  order  of 
the  Court  or  Judge,  or  the  award  or  certificate  of  such 
referee,  shall  be  enforceable  by  the  same  process  as  the 
finding  of  a  jury  upon  the  matters  referred.. 

(/)  2  &  3  Will.  4,  c  39.  [g]  Inglis  v.  Haigh,  8  M.  &  W.  769. 

\h)  17  &  18  Vict.  c.  125,  s.  3. 


451 


SMITH  S    LAW   OF    CONTRACTS. 


Now,  these  being  the  remedies  by  which  contracts 
are  enforced  in  courts  of  law,  the  next  question  is,  as 
to  the  time  within  which  those  remedies  are  to  be  pur- 
sued :  and  those  times  depend  upon  the  provisions  of 
the  Acts  of  Parliament  which  we  call  Statutes  of  Limi- 
tation. 

The  policy  of  the  Legislature  in  enacting  such  stat- 
utes, and  thereby  constituting  a  time  after  the  lapse  of 
which  engagements  shall  be  no  longer  capable  of  being 
enforced^  has  always  been  considered  unexceptionable. 
r*4.f^91  *When  you  find  a  debt  or  an  engagement  ex- 
isting after  the  lapse  of  a  long  period  of  time, 
it  is  possible,  indeed,  that  strict  justice  may  require  its 
enforcement,  but  it  is  also  possible  that  great  injustice 
may  be  done  by  enforcing  it.  Suppose,  for  instance,  an 
executor  finds  a  bond  forty  years  old  in  his  testator's 
repository,  it  may  be  that  the  principal  and  interest  are 
due  and  unpaid,  but  it  may  also  be  that  they  have  been 
paid ;  or  that  great  part ,  has  been  paid,  and  that  the 
vouchers  have  been  lost;  or  it  may  be  that  the  bond 
was  deposited  with  the  testator  as  a  collateral  security, 
and  that  no  liability  ever  in  reality  accrued  upon  it,  but 
that  the  obligee  forgot  to  reclaim  it  or  died  pending  the 
suretyship,  leaving  his  representatives  in  ignorance  of 
the  transaction.  It  may  be  quite  impossible,  after  the 
lapse  of  forty  years,  to  prove  this.  Indeed,  it  may  be 
in  the  knowledge  of  no  person  living.  Now,  there  would 
be  the  greatest  hardship  in  calling  upon  a  man,  after  the 
lapse  of  an  indefinite  space  of  time,  to  defend  himself 
against  such  a  demand ;  but  there  is  no  great  hardship 
imposed  on  the  obligee  by  requiring  him  to  enforce  his 
claim  within  a  reasonable  time,  if  he  intend  to  enforce 
it  at  all. 

This,  then,  is  the  policy  of  the  Statutes  of  Limitation 


LIMITATION.  452 

— to  prevent  obsolete  claims  from  being  raked  up.    And 

now  as  to  tlie  time  which  the  Legislature  has  appointed 

for  the  purpose  of  pursuing  the   several  remedies  of 

which  I  have  spoken. 

*With  rear'ard  to  scire  facias,  there  was,  for  a    ^     ^^^ 

r^453T 
long  while,  no  limitation  imposed  by  statute  to    •-         ^ 

the  commencement  of  that  proceeding ;  but  now,  by  3 
&  4  Will.  IV.  c.  42,  s.  3,  a  scire  facias  on  a  recognizance 
must  be  sued  out  within  twenty  years.  After  the  re- 
covery of  a  judgment,  and  during  the  lives  of  the  parties 
to  it,  execution  may  issue  within  six  years,  without  re- 
viving the  judgment :  15  &  16  Vict.  c.  ,76,  s.  128. 
Afterwards  the  judgment  must  be  revived  by  writ  of 
revivor,  sect.  129.  This  writ,  if  the  judgment  be  less 
than  ten  years  old,  does  not  need  any  rule  or  order  to 
authorize  its  issue;  but  if  the  judgment  be  more  than  ten 
years  old,  a  rule  of  Court  or  Judge's  order  is  necessary ; 
and  if  more  than  fifteen  years  old,  a  rule  to  show  cause. 
An  action  of  debt  founded  upon  a  contract  made  by 
deed  was  not  formerly  subject  to  any  limitation  in  re- 
spect of  the  time  within  which  it  might  be  commenced : 
not  that  you  are  to  suppose  that  there  was  practicaUi/ 
no  security  against  an  obsolete  claim  founded  on  a  deed, 
for  the  Courts  had  introduced  a  presumption  that  such 
claims  were  satisfied  after  the  lapse  of  twenty  years : 
and  if  no  evidence  of  any  acknowledgment  of  the  exist- 
ence of  the  claim  appeared  to  have  taken  place  within 
that  time,  they  recommended  the  jury  to  presume  pay- 
ment or  a  release,  as  the  nature  of  the  case  happened 
to  require ;  but  there  was  no  statute  which  could  be 
pleaded  in  bar  of  such  action  until  the  3  &  4 
*Will.  IV.  c.  42,  the  3d  section  of  which  estab-  L  ^^^J 
lishes  the  limitation  of  twenty  years,  and  is  as  fol- 
lows : — 


454 


SMITH  S   LAW   OF   CONTRACTS. 


"  That  all  actions  of  debt  for  rent  upon  an  indenture  of 
demise,  all  actions  of  covenant  or  debt  upon  any  bond  or 
other  specialty,  and  all  actions  of  debt  or  scire  facias  upon 
any  recognizance,  and  also  all  actions  of  debt  upon  any 
award  where  the  submission  is  not  by  specialty,  or  for 
any  fine  due  in  respect  of  any  copyhold  estates,  or  for 
any  escape,  or  for  money  levied  on  any  fieri  facias,  and  all 
actions  for  any  penalties,  damages,  or  sums  of  money 
given  to  the  party  grieved,  by  any  statute  now  or  here- 
after to  be  in  force,  that  shall  be  sued  or  brought  at  any 
time  after  the  end  of  the  present  session  of  Parliament, 
shall  be  commenced  and  sued  within  the  time  and  limi- 
tation hereinafter  expressed,  and  not  after ;  that  is  to 
say,  the  said  actions  of  debt  for  rent  upon  any  indenture 
of  demise  or  covenant,  or  debt  upon  any  bond  or  other 
specialty,  actions  of  debt  or  scire  facias  upon  recogni- 
zance, ivithin  ten  years  after  the  end  of  this  present  session 
[a.d.  1834,]  or  tvithin  twenty  years  after  the  cause  of  such 
actions  or  suits,  but  not  after." 

It  will  be  observed  that  the  periods  of  limitation 
begin  to  run  from  the  accruing  of  the  cause  of  such  ac- 
tions or  suits ',  and  for  this  reason,  where  it  is  sought 
to  investigate  the  question  when  a  cause  of  action  has 
accrued,  recourse  is  very  commonly  had  to  the  decisions 
upon  the  Statutes  of  Limitation.     To  an  action  of  debt 


[*455] 


on  a  bond,  the  defendant  *pleaded  that  the  cause 


of  action  did  not  accrue  at  any  time  within 
twenty  years  next  before  the  commencement  of  the 
suit,  and  the  issue  raised  for  trial  was  upon  a  traverse 
of  this  averment.  On  the  bond  being  produced  at  the 
trial,  it  appeared  to  be  a  post  obit  bond,  and  it  was 
proved  that  the  party  upon  whose  death  the  sum 
secured  thereby  was  made  payable  died  within  twenty 
years.     It  was  held  that  the  verdict  ought  to  be  for  the 


LIMITATION.  455 

plaintiff. (z)  "What  does  the  Legislature  mean,"  said 
Wilde,  C.  J.,  "  by  the  cause  of  action.  The  object  of 
the  Statute  of  Limitations  was  to  prevent  parties  being 
harassed  by  stale  demands,  brought  forward  against 
them  at  a  period  when  all  their  witnesses  might  reason- 
ably be  presumed  to  be  dead,  and  when  the  circumstance 
of  the  plaintiff's  having  lain  by  so  long  without  challeng- 
ing them  to  make  payment,  afforded  fair  ground  for  pre- 
suming that  the  debt  had  been  paid.  The  Legislature 
thought  twenty  years  a  convenient  period,  beyond 
which  the  obligor  in  a  bond  ought  to  be  relieved  from 
the  necessity  of  preserving  evidence  in  discharge  of  his 
liability.  Bearing  in  mind,  therefore,  that  the  sole  ob- 
ject of  the  Legislature  was  to  discharge  parties  from 
demands  that  might  and  ought  have  been  enforced  at 
an  earlier  period,  we  have  plain  means  of  ascertaining 
the  intention  with  which  they  used  the  words  '  cause  of 
action,'  that  is,  a  cause  of  *action  capable  of 
being  enforced.  We  must  read  the  words 'debt'  ^  J 
and  '  cause  of  action'  in  the  plea,  in  the  same  sense  in 
which  the  statute  makes  such  a  plea  a  bar  to  the  action. 
What  then  is  the  meaning  of  this  plea  ?  That  the  ac- 
tion might  have  been  brought  more  than  twenty  years 
before  it  was  brought."  Now,  inasmuch  as  the  non- 
commencement  of  the  action  within  twenty  years  is  a 
matter  which  the  defendant  is  privileged  to  set  up  as  a 
defence,  and  the  plaintiff  meets  that  by  replying  "  that 
the  cause  of  action  did  accrue  within  twenty  years,"  the 
accruing  of  the  cause  of  action  being  the  point  from 
which  the  time  begins  to  run  within  which  an  action 
may  be  brought,  the  Court  held,  that  even  the  conceal- 
ment of  the  accruing  of  the  cause  of  action  does  not  pre- 
vent this  time  from  beginning  to  run  from  the  same 

[i)  Tuckey  v.  Hawkins,  4  C.  B.  (56  E.  C.  L.  R.)  655. 


456 


SMITH  S    LAW    OF    CONTRACTS. 


point,  and  that  even  the  fraudulent  concealment  of  the 
fact  will  not  prevent  the  period  of  limitation  from  elaps- 
'  mg.(k)  In  the  Courts  of  Chancery,  (/)  in  most  cases, 
this  injustice  would  be  prevented, — a  difference  in  the 
administration  of  the  law,  arising  from  the  different 
modes  of  administering  relief,  which  have  hitherto 
prevailed  in  those  Courts.  But  if  a  bond  be  con- 
r^^rn^  ditioned  to  do  various  things,  the  first  breach 
"^'of  one  of  those  conditions  is  not,  as  will  readily 
be  supposed,  such  an  accruing  of  the  cause  of  action  on 
the  bond  as  will  cause  the  statute  to  begin  to  run  so 
as  to  prevent  the  obligee  from  suing  for  subsequent 
breaches  of  the  obligation  to  do  other  of  those  things, 
any  more  than  it  would  be  so  in  the  case  of  the  first 
breach  of  a  covenant  to  do  such  things,  (m) 

The  action  of  covenant  is  liable  to  the  same  observa- 
tions as  the  action  of  debt  founded  on  a  deed ;  the 
same  section  of  3  &  4  Will.  IV.  c.  42,  has  (as  you  will 
observe)  applied  the  limitation  of  twenty  years  to  it 
also. 

Now,  from  these  limitations  thus  introduced  by  3  & 
4  Will.  IV.  c.  42,  there  are  certain  excepted  cases. 

In  the  first  place,  by  the  4th  section  of  the  Act,  as 
amended  by  19  &  20  Vict.  c.  97  (Mercantile  Law 
Amendment  Act,  1856),  s.  10,  if  the  person  entitled  to 
bring  the  action  be  an  infant,  a  married  woman,  or  an 
insane  person,  the  time  runs  not  from  the  accrual  of  the 
right  of  action,  but  from  the  removal  of  disability,  as  it 
is  called. 


[k)  Imperial  Gas  Co.  v.  London  Gas  Co.,  23  L.  J.  (Ex.)  303 ;  10  Ex. 
39,  s.  c.     See  Hunter  v.  Gibbons,  26  L.  J.  (Ex.)  1 ;  1  H.  &  N.  459. 

(0  Blair  v.  Bromley,  16  L.  J.  (Ch.)  105  ;  5  Hare  542,  s.  c. ;  Smith  v. 
Pococke,  22  L.  J.  (Ch.)  545;  sed  qucere. 

(m)  Sanders  v.  Coward,  15  M.  &  W.  56. 


LIMITATION.  457 

In  the  second  place,  if  the  defendant  be  beyond  seas, 
the  time  runs  from  his  return :  tlliat  is  also  by  the  Act 
of  3  &  4  Will.  IV.  In  the  case  of  joint  debtors,  the 
fact  of  one  or  more  being  beyond  seas  at  the  time  of 
the  accrual  of  the  cause  of  action,  is  no  longer  a  bar  to 
the  period  beginning  to  *run  as  to  joint  debtors  f^a'-q-] 
in  the  kingdom  at  that  time.(w) 

In  the  third  place,  if  an  acknowledgment  of  the 
liability  be  given  in  writing,  signed  by  the  person  liable 
or  his  agent,  the  time  runs  from  the  date  of  that  ac- 
knowledgment. This  is  by  sect.  5  of  3  &  4  Will.  IV. 
c.  42.  It  is  important,  therefore,  to  ascertain  what  is 
sufficient  to. constitute  such  an  acknowledgment.  It  is 
required  by  the  statute  to  be  made  by  writing,  signed 
by  the  party  liable  by  virtue  of  such  mdenture,  specialty, 
or  recognizance,  or  by  his  agent.^     Where  the  acknowl- 

[n)  19  &  20  Vict.  c.  97,  s.  11.  The  effect  of  this  section  is  more  fully 
considered  further  on. 

*  Statutes  like  that  of  3  &  4  Wm.  IV.  c.  42,  have  been  enacted  in 
Maine,  Massachusetts,  New  York,  Mississippi,  Arkansas,  and  perhaps 
in  some  of  the  other  States  :  Colbourne  v.  Averill,  30  Me.  olO  ;  Williams 
V.  Gridley,  9  Mete.  485  ;  Wadsworth  v.  Thomas,  7  Barb.  S.  C.  445  ; 
Thornton  v.  Crisp,  14  Sm.  &  Marsh.  52  ;  Ringgold  v.  Dunn,  3  Eng.  497. 
Apart  from  the  operation  of  such  statutes,  it  is  now  very  generally  held, 
on  both  sides  of  the  Atlantic,  that  the  fullest  acknowledgment  of  a  debt 
is  not  sufficient  to  take  the  case  out  of  the  limitation  acts,  if  such  acknowl- 
edgment be  accompanied  with  expressions  inconsistent  with  a  definite 
promise  to  pay.  Thus,  a  promise  to  make  an  arrangement  to  pay  will 
not  be  sufficient,  as  it  shows  ihat  the  defendant  instead  of  being  willing 
to  pay  the  debt  as  it  stands,  contemplates  paying  it  in  some  other  man- 
ner :  Kensington  Bank  v.  Patton,  14  Penn.  St.  479 ;  Morgan  v.  Walton, 
4  Ibid.  322 ;  Oakes  v.  Mitchell,  15  Me.  360.  So  the  statement  of  a 
debt  in  an  insolvent  petition,  for  the  circumstances  under  which  it  is 
made  are  inconsistent  with  an  immediate  provision  of  payment :  Christy 
V.  Flemington,  10  Penn.  St.  129.  Such  a  statement  as  ''  I  oAve  the  debt, 
but  won't  pay  it."  which  would  be,  under  the  older  de"cisions,  entirely 
sufficient  to  take  the  case  out  of  the  statute,  would  at  the  present  day  be 
wholly  insufficient :  Moore  v.  Bank  of  Columbia,  6  Pet.  92  ;  Sigourney 


458 


SMITH  S    LAW    OF    CONTRACTS. 


edgment  is  expressly  made  for  the  purpose  of  prevent- 
ing the  operation  of  the  statute,  no  difficulty  arises. 
But,  where  admissions  have  been  made  for  other  pur- 
poses, and  it  is  sought  to  convert  them  into  equivalents 
for  the  acknowledgment  required  by  the  statute,  some 
nicety  occurs,  as  it  always  does  when  a  question  of 
equivalents  arises.  Thus,  where  an  action  was  brought 
by  an  executor  on  a  covenant  in  an  indenture  of  mort- 
gage executed  by  the  defendant  to  the  testator  in  June, 
1824,  to  secure  payment  of  the  money  borrowed  and 
interest,  and  the  defendant  relied  upon  the  lapse  of  time 
as  a  defence,  the  plaintiff  attempted  to  prove  an  acknowl- 
edgment by  giving  in  evidence  a  deed  executed  within 
twenty  years  by  the  defendant.  The  deed  recited  the 
execution  of  the  mortgage  by  the  ^defendant 


[*459] 


to  the  testator,  for  securing  certain  money  and 


0.  Drury,  14  Pick.  390 ;  Barnard  v.  Bartholomew,  22  Ibid.  291  ;  Munford 
V.  Freeman,  7  Mete.  432;  Allen  v.  Webster,  15  AVend.  284;  Berghaus 
V.  Calhoun,  6  Watts  220  ;  Allison  v.  James,  9  Ibid.  381  ;  Kensington 
Bank  v.  Patton,  supra;  Carruth  v.  Paige,  22  Verm.  179  (approving 
Phelps  V.  Stewart,  12  Ibid.  256] ;  Ventris  v.  Shaw,  14  N.  H.  422  ;  Burton 
w.  Wharton,  4  Harring.  296  ;  Gardner  v.  M'Mahon,  3  Q.  B.  (43  E.  C.  L. 
R.)  561 ;  Hart  v.  Prendergast,  14  M.  &  W.  741.— r.' 

Sherman  v.  Wakeham,  11  Barb.  254;  Harbold  v.  Kurtz,  16  Penn.  St. 
21  ;  Hazlebaker  v.  Reeves,  12  Ibid.  264;  Patterson  v.  Cobb,  4  Fla.  481 
Ayres  v.  Richards,  12  111.  146  ;  Gillingham  v.  Gillingham,  17  Penn.  St 
3U2;  Bell  V.  Crawford,  8  Gratt.  110;  Moore  v.  Hyman,  13  Ired.  272 
Bixley  v.  Gale,  19  Ala.  151  ;  Bryan  v.  Ware,  20  Ibid.  687  ;  Grant  v 
Ashley,  7  Eng.  762  ;  Ten  Eyck  v.  Wing,  1  Mann.  40 ;  Brainard  v.  Buck 
25  Verm.  573  ;  Deloach  v.  Turner,  6  Rich.  117  ;  Poole  v.  Relfe,  23  Ala 
701  ;  Mitchell  v.  Clay,  8  Tex.  443  ;  Guy  v.  Tams,  6  Gill  82 ;  Carroll  v. 
Forsyth,  69  111.  127  ;  Blakeman  v.  Fonda,  11  Conn.  561  ;  Patton  v.  Has- 
singer,  69  Penn.  St.  305 ;  Johns  v.  Lantz,  63  Ibid.  324  ;  M-Clelland  v. 
West,  59  Ibid.  487  ;  Hunter  v.  Killridge's  Estate,  31  Verm.  359  ;  Bray- 
ton  V.  Rockwell,  Ibid.  621 ;  Knight  v.  House,  29  Md.  194.  The  acknowl- 
edgment must  be  to  the  party  or  his  agent,  and  not  to  a  third  person  : 
Carroll  v.  Forsyth,  69  111.  127;  Sibert  v.  Wilder,  16  Kan.  176;  M'Kin- 
ney  v.  Snyder,  78  Penn.  St.  497  ;  Trousdale  v.  Anderson,  9  Bush  276; 
Cape  Girardeau  Co.  v.  Harbison,  58  Mo.  90. 


LIMITATION,  459 

interest,  and  stated  that  he  conveyed  the  property 
mortgaged,  with  other  things,  to  trustees  to  sell,  and  to 
pay  out  of  the  proceeds,  the  mortgage  and  other  incum- 
brances on  the  property ;  and  the  Court  of  Exchequer 
held  that  this  was  not  such  an  acknowledgment  as  was 
required  by  the  statute, (o)  not  being  an  ndmission  of 
any  existing  debt.  On  the  oth^r  hand,  where  the  action 
was  on  a  covenant  in  a  mortgage-deed,  to  pay  the  plain- 
tiff principal  and  interest  on  the  1st  November  1830, 
and  the  question  on  a  defence  of  the  Statute  of  Limi- 
tations was  upon  the  fact  of  an  acknowledgment  of  the 
debt,  the  plaintiff  proved  a  deed  of  conveyance  from 
the  defendant  to  Thompson  of  "the  equity  of  redemption 
in  the  premises  mortgaged.  It  was  dated  within  twenty 
years,  and  after  reciting  the  mortgage-deed,  recited  also 
that  the  principal  sum  still  remained  due  by  virtue  of 
that  deed,  all  the  interest  having  been  paid  up  to  the 
date.  It  also  contained  a  covenant  by  Thompson  with 
the  defendant  to  pay  the  principal  and  interest,  and  to 
indemnify  the  defendant  in  case  he  should  be  called 
upon  to  pay  them,  "  The  deed,"  said  the  Court,  "  fur- 
nishes ample  evidence  that  all  interest  was  paid  up  to 
the  date ;  for  that  fact  is  expressly  recited,  and  the  date 
is  within  the  twenty  years."  (jt?) 

*In  the  fourth  place,  if  there  have  been  a  part    r^^j-n-i 
payment,  either  of  principal  or  interest,  the  time 
runs  from  such  payment :  this  is  also  by  sect.  5. 

(o)  HowcuttiJ.  Bonser,  3  Exch.  491. 

(p)  Forsyth  v.  Bristowe,  22  L.  J.  (Ex.)  255  ;  8  Ex.  347,  s.  c.  See 
Morley  w.  Morley,  5  De  G.,  M.  &  G.  610;  25  L.  J.  (Ch.)  1;  Roddam  v. 
Morley,  25  L.  J.  (Ch.)  329 ;  2  K.  &  J.  336  ;  reversed  in  26  L.  J.  (Ch.) 
428;  1  De  G.  &  J.  1.  See  further  Thorne  v.  Kerr,  25  L.  J.  ',Ch.)  57  ;  2 
Kay  &  J.  54;  Jortin  v.  S.  E.  By.  Co.,  24  L.  J.  (Ch.)  343 ;  6  De  G.,  M.  & 
G.  270  ;  Burrowes  v.  Gore,  6  H.  L.  C.  907  ;  Dixon  v.  Holdroyd,  27  L.  J. 
(Q.  B.)  43  ;  7  E.  &  B.  (90  E.  C.  L.  R.)  903 ;  Moodie  v.  Bannister,  28  L. 
J.  (Ch.)  881  ;  4  Drew.  433. 
31 


460 


SMITH  S   LAW    OF    CONTRACTS. 


In  the  fifth  place,  if  an  action  have  been  brought,  and 
the  defendant  outlawed,  or  judgment  obtained  against 
him,  and  arrested  or  reversed  by  writ  of  error,  a  new 
action  may  be  commenced  within  a  year  after  the  re- 
versal of  the  outlawry  or  of  the  judgment :  this  is  by 
sect.  6. 

Such  is  the  statutable  time  of  limitation  in  actions  on 
specialties,  which,  you  will  have  observed,  is  now  in 
every  case  twenty  years,  subject  to  the  above  excep- 
tions.    Now  with  regard  to  simple  contracts  : — 

The  limitation  of  time  in  cases  of  action  upon  simple 
contracts,  whether  brought  in  the  form  of  debt  or  of 
assumpsit,  depends  upon  stat.  21,  Jac.  I.  c.  16,  which 
applies  both  to  assumpsit  and  to  deU  on  simple  contract. 
The  words  of  the  Act  are,  "  that  all  actions  of  account 
upon  the  case  (other  than  such  accounts  as  concern  the 
trade  of  merchandise  between  merchant  and  merchant, 
their    factors    or    servants),    and   all   actions  of  debt 


[*461] 


"^grounded  upon  any  lending  or  contract  without 


specialty,  and  all  actions  of  debt  for  arrearages 
of  rent,  shall  be  commenced  and  sued  within  six  years 
next  after  the  cause  of  such  action  or  suit,  and  not 
after."  Assumpsit,  as  I  have  explained  to  you,  was 
originally  a  species  of  action  on  the  case.(^)  It  there- 
fore falls  within  the  limitation  prescribed  by  this 
statute,  the  period  limited  by  which  is,  as  just  stated, 
six  years.  • 

All  actions  upon  simple  contracts  must  therefore  be 
commenced  within  six  years,  unless  they  fall  within  cer- 
tain classes  excepted  from  the  operation  of  the  statute 
of  James  I. 

In  the  first  place,  that  statute  excepts  (r)   the  five 

[q)  Battely  v.  Faulkner,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  294,  per  Hol- 
royd,  J. 

(r)  Sect.  7. 


LIMITATION.  461 

cases  of  the  person  entitled  to  the  action  being  an  infant, 
married,  insane,  imprisoned,  or  beyond  seas  at  the  time 
of  the  accruing  of  the  right,  and  gives  six  years  from 
the  removal  of  the  disability. 

It  had  been  doubted  whether  this  proviso  applied  to 
the  case  of  a  foreigner  living  abroad,  because  if  he  came 
to  England  without  having  been  here  before,  he  could 
not  be  said  to  have  returned  from  beyond  seas,  as  it  is 
expressed  in  this  statute;  and,  consequently,  there 
being  no  period  from  which  the  exceptional  six  years 
could,  in  this  case,  run,  he  was  not  within  the  proviso 
of  the  statute,  and  must  therefore  bring  his  action 
within  six  years  from  the  time  of  the  cause  of  action 
accruing.  But  the  ^Common  Pleas  held  that  p^<po-i 
this  was  not  so,  and  the  Chief  Justice  Jervis 
said,  "  I  do  not  think  the  fair  meaning  of  the  word 
'  return'  is,  to  refer  it  to  the  coming  back  of  persons  who 
have  been  here  before ;  I  think  the  meaning  of  the  pro- 
viso is,  that  an  action  shall  not  be  commenced  after  six 
years,  but  if  the  plaintiff  was  abroad  when  the  right  of 
action  accrued,  then  when  he  comes  to  England  the 
statute  is  to  begin  to  run  against  him."  (5) 

But  it  has  been  thought  expedient  to  take  away  this 
exception  in  favor  of  persons  imprisoned  or  beyond 
seas ;  and  by  the  statute  19  &  20  Vict.  c.  97,  s.  10,  no 
person  is  entitled  to  any  time  beyond  the  period  fixed 
by  the  previous  enactment,  to  commence  an  action  or 
suit,  by  reason  of  such  person,  or  one  or  more  of  such 
persons,  being  at  the  time  when  such  action  or  suit 
accrued  beyond  seas  or  imprisoned.  (/)    This  section  has 

(s)  Lafond  v.  Raddock,  22  L.  J.  (C.  P.)  217  ;  13  C.  B.  (76  E.  C.  L. 
R.)  813,  s.  c. ;  Strithorst  v.  Graeme,  3  Wils.  145;  Williams  v.  Jones,  13 
East  439. 

{t)  See  Cornill  v.  Hudson,  27  L.  J.  (Q.  B.)  8  ;  8  E.  &  B.  (92  E.  O.  L. 
R.)  429. 


462  smith's  law  of  contracts. 

been  held  to  be  retrospective  so  far  as  to  include  causes 
of  action  that  accrued  before  19  &  20  Vict.  c.  97  was 
passed,  {ti)  -/^ 

In  the  second  place,  the  statute  of  James  I.  also  con- 
tains the  exception,  in  the  case  of  the  defendant  being 
r*4-r^1  outlawed,  (i^)  or  the  judgment  reversed  or 
^arrested,  which  I  have  just  cited  with  regard 
to  actions  upon  specialties.  Indeed,  the  one  is  copied 
from  the  other. 

In  the  third  place,  if  the  defendant  be  beyond  seas 
when  the  right  accrued,  the  plaintiff  has  six  years  after 
his  return,  not  by  the  statute  of  James,  but  by  stat.  4 
Anne,  c.  16,  s.  19;(2i')  but  it  is  a  singular  thing  that 
"beyond  seas"  does  not  mean  the  same  thing  in  this 
Act  of  Parliament  as  in  the  Acts  of  James  and  William 
IV.;  for  by  3  &  4  Will.  IV.  c.  42,  s.  7,  it  is  directed 
that  no  part  of  the  United  Kingdom,  or  of  Guernsey, 
Jersey,  Alderney,  Sark,  or  Man,  shaU  be  considered 
beyond  seas,  within  the  meaning  of  that  Act  or  of  the 
Act  of  James  I.;  but,  as  the  statute  of  Anne  is  not 
mentioned,  it  is  held  that  the  words  "  beyond  seas" 
used  in  that  Act  retain  their  common'  law  meaning, 
which  was  literally  beyond  the  sea  surrounding  Great 
Britain.  The  Court  of  Exchequer,  therefore,  decided, 
in  Lane  v.  Bennett,  (r?;)  that  Ireland  is  not  within  the 
statute  of  Anne,  and  that  the  plaintiff  had  still  six 
years  in  which  to  bring  his  action  after  the  return  of 
the  defendant,  who  had  been  in  that  part  of  the  United 

(m)  Cornill  v.  Hudson,  su'pra  ;  Pardo  v.  Bingham,  L,  R.  4  Ch.  735,  39 
L.  J.  (Ch.)  170. 

(v)  Sect.  4. 

(w)  Fannin  v.  Anderson,  7  Q.  B.  (53  E.  C.  L.  R.)  811  ;  Townes  v. 
Mead,  24  L.  J.  (C.  P.)  89  ;  16  C.  B.  (81  E.  C.  L.  R.)  123. 

(a;)  1  M.  &  W.  70.  See  Battersby  v.  Kirk,  2  Bing.  N.  C.  (29  E.  C.  L. 
R.)  584. 


LIMITATION.  463 

Kingdom  ever  since  the  cause  of  action  accrued.  But 
this  condition  of  the  statute  law,  althougli  well  worth 
observing,  does  not  now  "^exist,  the  Legislature  r^AnAi 
having  enacted  in  the  statute  19  &  20  Vict.  c. 
97,  s.  12,  that  these  places  shall  be  within  the  statute 
of  Anne  in  like  manner  as  they  are  within  the  3  &  4 
Will.  IV.  c.  42,  s.  7.  Such  are  the  points  of  time  from 
which  Statutes  of  Limitation  begin  to  run ;  and  it  must 
be  remembered  that  in  every  case  of  a  Statute  of  Limi- 
tations, if  once  the  time  of  limitation  begins  to  run, 
nothing  that  happens  afterwards  will  stop  it.(j/) 

There  was.  moreover,  a  very  important  distinction 
between  co-plaintiffs  and  co-defendants.  It  is  clear  that 
a  sole  plaintiff  might,  if  he  chose,  bring  his  action  while 
abroad  or  wait  till  his  return,  when  the  statute  began 
to  run  5(0)  and  co-plaintiffs,  if  some  were  abroad  and 
others  in  England,  must  have  sued  within  six  years 
from  the  cause  of  action  accruing :  (a)  but  where  one  of 
two  co-contractors  who  was'  a  defendant,  was  beyond 
seas,  the  statute  did  not  run  ;  for  it  was  decided,  (J) 
that  although  the  statute  commences  to  run  when  the 
right  of  action  accrues,  where  there  are  several  joint 
claimants,  and  one  of  them  is  within  seas,  yet  where 
there  *were  joint  debtors,  and  one  of  them  was  r-^.ACi''-] 
abroad  when  the  cause  of  action  arose,  the 
statute  did  not  begin  to  run  until  his  return.  Thus  the 
important  distinction  just  mentioned  between  the  posi- 

iy)  Smith  v.  Hill,  1  Wils.  134;  Rhodes  v.  Smethurst,  6  M.  &  W.  351 ; 
Curlewis  v.  Earl  of  Mornington,  26  L.  J.  (Q.  B.)  181 :  7  E.  &  B.  (90  E. 
C.  L.  R.)  283  ;  Sturgis  v.  Darrell,  28  L.  J.  (Ex.)  366  ;  4  H.  &  N.  622,  s. 
c.  in  Exch.  Ch. ;  29  L.  J.  (Ex.)  472. 

(z)  Le  Veux  v.  Berkeley,  5  Q.  B.  (48  E.  C.  L.  R.)  836. 

(a)  2  Wms.  Saund.  121.  See  Perry  v.  Jackson,  4  T.  R.  516  ;  Strithorst 
V.  Graeme,  3  Wils.  145. 

{b)  Fannin  v.  Anderson,  supra. 


465 


SMITHS    LAW    OF   CONTRACTS. 


tion  of  co-plaintiffs  and  co-defendants  arose.  This  dis- 
tinction is  founded  upon  the  wording  of  the  19th  section 
of  the  statute  of  4  Anne,  c.  16,  compared  with  the  21 
Jac.  I.  c.  16;  and  the  reason  of  it  seems  to  be,  that  one 
plaintiff  can  act  for  others  and  use  their  names  in  an 
action,  and  therefore  the  protection  of  the  statute  is  not 
wanted.  With  respect  to  defendants,  however,  the 
reason  did  not  apply;  the  plaintiff  might  not  be  able  to 
bring  the  absent  defendant  into  Court  by  any  act  of  his, 
and  therefore,  if  he  were  compelled  to  sue  those  who 
were  within  seas  without  joining  those  who  were  abroad 
he  might  possibly  recover  against  insolvent  persons,  and 
lose  his  remedy  against  the  solvent  ones  who  were 
absent.  On  the  other  hand,  if  he  sued  out  a  writ  against 
all,  and  either  continued  it  without  declaring,  or  pro- 
ceeded to  outlawry  against  the  absent  parties,  and  de- 
clared against  those  within  seas,  he  was  placed  in  pre- 
cisely the  same  situation  as  if  the  statute  of  Anne  had 
never  passed,  and  was  obliged  to  incur  fruitless  expense, 
the  avoiding  of  which  seems  to  have  been  the  object  of 
the  statute  of  Anne.  But  this  evil  is  remedied  by  the 
statute  so  often  cited,  and  now  the  Statutes  of  Limita- 
tions before  mentioned  (including  3  &  4  Will.  IV.  c.  42, 


P=466] 


s.  3)  run  as  to  the  joint  debtor  who  is  not  be- 


yond *seas,  from  the  time  when  the  action  or 
suit  accrued  ;  but  there  is  no  bar  from  commencing  an 
action,  &c.,  against  a  joint  debtor  who  was  beyond  seas, 
after  his  return,  by  reason  of  judgment  haAdng  been 
recovered  against  another  who  Avas  not  beyond  seas.(c) 
It  seems  also  that  if,  after  the  Statute  of  Limitations 
has  begun  to  run,  the  right  to  sue  and  the  liability  to  be 
sued,  meet  in  the  same  person  by  any  act  of  the  law,  as 
where  a  debtor  to  the  deceased  becomes  his  administra- 

(c)  19  &  20  Vict.  c.  97,  s.  11 ;  King  v.  Hoare,  13  M.  &  W.  494. 


LIMIT  ATIOX.  466 

tor,  the  running  of  the  statutes  is  suspended  while  they 
so  continue.  (<i) 

In  the  fourth  place,  if  the  defendant  have  given  an 
acknowledgment  hj  writing  signed,  the  protection  of  the 
statute  is  removed.  After  the  passing  of  the  stat- 
ute of  James,  and  until  Lord  Tenterden's  Act,  which 
I  shall  immediately  mention,  an  acknowledgment  by 
mere  words  would  have  been  sufficient ;  but  by  that, 
which  is  the  9  Geo.  lY.  c.  14,  the  acknowledgment 
must  be  in  tvriting,  "  signed  by  the  party  chargeable." 
It  enacts  "that  no  acknowledgment  or  promise  hy  imrds 
only  shall  be  deemed  sufficient  evidence  of  a  new  or  con- 
tinuing contract,  whereby  to  take  any  case  out  of  the 
operation  of  the  said  enactments,  or  either  of  them,  or 
to  deprive  any  party  of  the  benefit  thereof,  v^s^ar^i. 
*unless  such  acknowledgment  or  promise  shall 
be  made  or  contained  by  or  in  some  writing  to  be  signed 
by  the  party  chargeable  thereby ;  and  that  where  there 
shall  be  two  or  rhore  joint  >  contractors,  or  executors,  or 
administrators  of  any  contractor,  no  such  joint  con- 
tractor, executor,  or  administrator  shall  lose  the  benefit 
of  the  said  enactments,  or  either  of  them,  so  as  to  be 
chargeable  in  respect  or  by  reason  only  of  any  written 
acknowledgment  or  promise  made  and  signed  by  any 
other  or  others  of  them;  provided  always,  that  nothing 
herein  contained  shall  alter,  or  take  away,  or  lessen  the 
effect  of  any  payment  of  any  principal  or  interest  made 
by  any  person  whatsoever  :  provided  also,  that  in  actions 
to  be  commenced  against  two  or  more  joint  contractors, 
or  executors,  or  administrators,  if  it  shall  appear  at  the 
trial  or  otherwise  that  the  plaintifi",  though  barred  by 
either  of  the  said  recited  Acts  or  this  Act,  as  to  one  or 
more  of  such  joint  contractors,  or  executors,  or  adminis- 

(d)  Seagram  v.  Knight,  36  L.  J.  (Ch.)  918  ;  L.  R.  2  Ch.  628  ;  Mills  v. 
Borthwick,  35  L.  J.  (Ch.)  31. 


467  smith's  law  of  contracts. 

trators,  shall  nevertheless  be  entitled  to  recover  against 
any  other  or  others  of  the  defendants  by  virtue  of  a 
new  acknowledgment,  or  promise  or  otherwise,  judg- 
ment may  be  given  and  costs  allowed  for  the  plaintiff,  as 
to  such  defendant  or  defendants  against  whom  he  shall 
recover,  and  for  the  other  defendant  or  defendants 
against  the  plaintiff." 

No  part  of  the  statute  has  given  rise  to  more  litiga- 
tion than  this  saving  clause ;  but  it  is  now  settled  that 

razAnoi  the  acknowledo;ment,  in  order  to  bar  *the  stat- 
[468]  ^.       '  -,.,..  .      i 

ute,  must  contain  an  unconditional  promise  to 

pay.  Such  promise  the  law  implies  from  an  acknowl- 
edgment of  the  debt,  provided  it  be  an  acknowledgment 
or  admission  so  distinct  that  a  promise  to  pay  may  be 
reasonably  inferred  from  it.(e) 

Many  of  the  older  cases  display  a  different  doc- 
trine. (/)  These,  however,  are  expressly  overruled  by 
the  leading  case  of  Tanner  v.  Smart,  (^)  where,  in  an 
elaborate  judgment,  Lord  Tenterden,  ^!  J.,  says,  "  The 
only  principle  upon  which  it  (an  acknowledgment)  can 
be  held  to  be  an  answer  to  the  statute  is  this,  that  an 
acknowledgment  is  evidence  of  a  new  promise,  and  as 
such  constitutes  a  new  cause  of  action,  and  supports  and 
establishes  the  promise  which  the  declaration  states. 
Upon  this  principle,  whenever  the  acknowledgment  sup- 
ports any  of  the  promises  in  the  declaration,  the  plain- 
tiff succeeds ;  when  it  does  not  support  them,  though  it 

\e)  CoUisrj.  Stack,  26  L.J.  (Ex.)  138-  1  H.  &  N.  605;  Holmes  v. 
Mackrell,  3  C.  B.  (N.  S.)  (91  E.  C.  L.  R.)  789;  Godwin  v.  Culley,  4  H. 
&  N.  373  ;  Holmes  v.  Smith,  8  Ir.  (Com.  Law  Rep.)  424 ;  Cornforth  v^ 
Smithard,  29  L.  J.  (Ex.)  228  ;  Bourdin  v.  Greenwood,  L.  R.  13  Eq.  281 ' 
41  L.J.  (Ch.)  73. 

(/)  Yea  V.  Fouraker,  2  Burr.  1099  ;  Thornton  v.  Illingworth,  2  B.  & 
0.  (9  E.  C   L.  R.)  824. 

(^)  6  B.  &  C.  (13  E.  C.  L.  R.)  603  ;  Turney  v.  Dodwell,  23  L.  J.  (Q. 
B.)  137 ;  3  E.  &  B.  (77  E.  C.  L.  R.)  136,  s.  c. 


LIMITATION.  468 

may  shotv  clearly  that  the  debt  has  never  been  j^cdd,  hut  is 
still  a  subsisting  debt,  the  plaintiff  f\iils."  This  decision 
was  based  chiefly  on  that  of  Hey  ling  '"^v.  Hast-  r*igg-| 
ings,(/^)  one  of  the  oldest  cases  on  the  statute, 
and  has  been  recognised  and  cited  in  almost  every  sub- 
sequent case  on  the  point,  (z) 

As  long  as  the  doctrine  prevailed,  that  it  sufficed  to 
show  an  acknowledgment  which  rebutted  the  presump- 
tion arising  from  the  lapse  of  time  that  the  claim  was 
satisfied,  it  was  not  only  immaterial  whether  a  promise 
were  made  or  not,  but  a  condition  with  which  such  pro- 
mise, if  made,  might  chance  to, be  coupled,  would  nowise 
have  defeated  the  effect  and  virtue  of  the  acknowledg- 
ment ;  for  the  acknowledgment  was  held  to  be  in  itself 
a  bar  to  the  statute,  and  no  promise,  either  express  or 
implied,  was  required.  In  Dowthwaite  v.  Tibbut,(>?:) 
the  debtor  said,  he  ^^ would  not"  and  in  Leaper  v.  Tat- 
ton,(^)  he  ^'- could  nof  pay;  and  yet  in  both  they  were 
held  to  have  sufficiently  admitted  the  debt.  But  aq- 
cording  to  the  doctrine  now  adopted  from  Tanner  v. 
Smart,  any  conditional  promise  defeats  the  acknowledg- 
ment :  so  that,  however  strongly  the  debt  may  be  ad- 
mitted, unless  there  be  a  promise  to  pay  it,  express  or 
implied,  it  cannot  be  enforced.  Lord  Tenterden  said, 
in  Tanner  v.  Smart,  "Upon  a  general  acknowledgment, 
where  "^'nothing  is  said  to  prevent  it,  a  promise  to  .. 
pay  may  and  ought  to  be  implied ;  but  where  '-  -^ 
the  party  guards  his  acknowledgment,  and  accompanies 
it  with  an  express  declaration  to  prevent  any  such  im- 

{h)  Comyn  54 ;  Salk.  29,  s.  c. 

(i)  Ma-rell  v.  Frith,  3  M.  &  W.  402;  Bateman  v.  Pinder,  3  Q.  B.  (43 
E.  C.  L.  R.)  574  ;  Hurst  v.  Parker,  1  B.  &  Aid.  92 ;  Cripps  v.  Davis,  12 
M.  &  W.  159 ;  Hart  v.  Prendergast,  15  L.  J.  (Ex.)  223  ;  14  M.  &  W. 
741,  s.  c. ;  Williams  v.  Griffith,  3  Ex.  335. 

(^•)  5  M.  &  Scl.  75.  (Z)  IG  East  420. 


470 


SMITHS   LAW   OF   CONTRACTS. 


plication,  why  shall  not  the  rule  ^  Expresswn  facit  cessare 
taciturn  prevail  ?"  So  rigorously  has  this  been  followed, 
that,  in  the  case  of  Hart  v.  Prenclergast,  (w)  the  follow- 
ing written  statement  was  held  an  insufficient  "acknowl- 
edgment or  promise"  to  satisfy  the  statute  :  "  I  will  not 
fail  to  meet  Mr.  H.  (the  plaintiff)  on  fair  terms,  and 
have  now  a  hope  that  before,  perhaps,  a  week  from  this 
date,  I  shall  have  it  in  my  power  to  pay  him,  at  all 
events,  a  portion  of  the  debt,  when  we  shall  settle  about 
the  liquidation  of  the  balance."  Again,  Pollock,  C.  B., 
says,  "  It  is  not  sufficient  that  the  document  contains  a 
promise  by  the  defendant  to  pay  when  he  is  a1)le,  or  hy 
hill,  or  a  mere  expectation  that  he  shall  pay  at  some 
future  time ;  it  should  contain  either  an  unqualified 
promise  to  pay,  that  is,  a  promise  to  pay  on  request,  or 
if  it  be  a  conditional  promise,  or  a  promise  to  pay  on 
the  arrival  of  a  certain  period,  the  performance  of  the 
condition  or  the  arrival  of  that  period  should  be  proved 
by  the  plaintiff.  The  only  question  in  the  present  case 
is,  whether  this  letter  contains  a  promise  to  pay  the  debt 
on  request.     Now,  certainly,  it  does  not  in  terms  con- 


[*471] 


tain  such  a  promise."  (?z)     On  the  other  *hand, 


a  letter  containing  these  words,  "  I  will  try  to 
pay  you  a  little  at  a  time  if  you  will  let  me.  I  am  sure 
that  I  am  anxious  to  get  out  of  your  debt.  I  will  en- 
deavor to  send  you  a  little  next  week :"  has  been  held 
sufficient,  as  an  unequivocal  acknowledgment,  not  limited 
by  a  refusal  or  any  other  qualifying  statement,  {p) 

This  doctrine  as  to  conditional  ability  has  been  carried 
further,  on  the  authority  of  Tanner  v.  Smart,  in  the  case 

(m)  Supra. 

(n)  Spong  V.  Wright,  9  M.  &  W.  692 ;  Morrell  v.  Frith,  supra ;  and 
Cripps  V.  Davis,  12  M.  &  W.  159;  Bush  v.  Martin,  33  L.  J.  (Ex.)  17: 
Cockerill  v.  Sparke,  32  L.  J.  Ex.  118. 

(o)  Lee  V.  Wilmot,  L.  R.  1  Ex.  364;  35  L.J.  (Ex.)  175. 


LIMITATION.  471 

of  Waters  v.  Earl  of  Thanet,(j»?)  where  the  defendant 
gave  an  acknowledgment  of  certain  overdue  bills  of  ex- 
change in  a  memorandum  thus  worded :  "  I  hereby 
debar  myself  of  all  future  plea  of  the  Statute  of  Limi- 
tations in  case  of  my  being  sued  for  the  recovery  of  the 
amounts  of  the  said  bills  and  of  the  interest  accruing 
thereon  at  the  time  of  my  being  so  sued :  and  I  hereby 
promise  to  pay  them,  separately  or  conjointly,  with  the 
full  amount  of  legal  interest  on  each  or  both  of  them, 
whenever  my  circumstances  may  enable  me  to  do  so, 
and  I  may  be  called  upon  for  that  purpose."  Now  in 
this  case  the  defendant  had  become  able  to  pay  the  bills 
above  six  years  before  the  action  was  brought ;  but  the 
plaintiff  was  ignorant  of  it.  But  it  was  de- 
cided, that  when  a  debtor  protected  *by  the  ^  -^ 
statute  promises  to  pay  whenever  he  may  be  able,  the 
creditor  is  expected  to  be  on  the  watch,  and  when  he 
brings  his  action  must  prove  the  ability  which  revives 
his  right.  The  period  at  which  it  is  revived  is  that  of 
the  fact  taking  place,  not  of  his  becoming  acquainted 
with  it. 

These  decisions  have  been  thought  unsupported  by 
the  case  of  Hey  ling  v.  Hastings,  from  which  that  of 
Tanner  v.  Smart  derived  its  authority,  and  even  at  vari- 
ance with  it :  the  words  there  used  by  the  debtor  were, 
"  Prove  it,  and  I  will  pay  you :"  and  it  was  held,  that 
"the  promise,  though  conditional,  shall  bring  it  back 
within  the  statute,  for  the  defendant  waves  the  henefit  of 
the  Act  as  much  as  hy  an  express  promise;'  and  Holt,  C.  J., 
having  reserved  the  point,  ten  judges  conferred  and  ap- 
proved of  the  judgment;  adding,  that  if  the  creditor 
proved  the  delivery  of  the  goods,  which  he.  might  do  at 
the  trial,  it  would  suffice  to  take  the  case  out  of  the 

(i>)2Q.  B.  (42E.  C.  L.  R.)757. 


472  smith's  law  of  contracts. 

statute.  (5')  The  law,  however,  seems  settled  ;(r)  and 
in  a  recent  case  it  was  held  that  although  a  simple 
acknowledgment  of  the  debt,  without  any  qualification, 
may  be  sufficient  to  bar  the  Statute  of  Limitations,  be- 
cause the  law  will  infer  a  promise  to  pay  the  debt ;  yet 
r*4-7^1  ^^  there  be  *any thing  to  qualify  the  acknowl- 
edgment or  make  it  doubtful  it  is  not  sufficient. 
Therefore,  where  there  was  merely  a  proposal  that  if 
so  much  was  allowed  on  one  side  so  much  should  be 
allowed  on  the  other,  and,  independently  of  such  con- 
dition, there  was  no  acknowledgment  of  the  debt,  it  was 
considered  to  be  no  bar  to  the  statute.  (5)  Similarly  it 
would  seem,  though  it  is  not,  it  is  believed,  expressly 
decided,.  "  that  a  letter,"  to  quote  the  words  of  Mellish, 
'L.J.,{t)  "which  is  stated  to  be  without  prejudice  can- 
not be  relied  upon  to  take  a  case  out  of  the  Statute  of 
Limitations,  for  it  cannot  do  so  unless  it  can  be  relied 
upon  as  a  new  contract."  Now  if  a  man  says  his  letter 
is  without  prejudice,  that  is  tantamount  to  saying,  "  I 
make  you  an  offer  which  you  may  accept  or  not,  as  you 
like ;  but  if  you  do  not  accept  it,  the  having  made  it  is 
to  have  no  effect  at  all."  It  appears  to  me,  not  on  the 
grounds  of  bad  faith,  but  on  the  construction  of  the  doc- 
ument, that  when  a  man  says  in  his  letter  it  is  to  be 
without  prejudice,  he  cannot  be  held  to  have  entered 
into  any  contract  by  it  if  the  offer  contained  in  it  is  not 
accepted. 

(3)  1  Ld.  Raym.  389  and  421  ;  Salk.  29,  s.  c. 

(r)  Smith  V.  Thorne,  21  L.  J.  (Q.  B.)  199  ;  18  Q.  B.  (83  E.  C.  L.  R.) 
134,  Ex.  Ch. ;  Rackham  v.  Marriott,  26  L.  J.  (Ex.)  315  ;  2  11.  &  N.  196, 
Ex.  Ch. ;  Hughes  v.  Paramore,  24  L.  J.  (Ch.)  681  ;  Everett  v.  Robertson, 
28  L.  J.  (Q.  B.)  23. 

(s)  Francis  v.  Hawkesley,  28  L.  J.  (Q.  B.)  370;  Goate  v.  Goate, 
1  H.  &  N.  29 ;  Buckmaster  v.  Russell,  10  C.  B.  (N.  S.)  (100  E.  C.  L.  R.) 
74.5. 

(0  In  re  River  Steamer  Co.,  Mitchell's  Claim,  L.  R.  6  Ch.  831. 


LIMITATION.  473 

If  the  evidence  be  of  a  promise  to  pay  on  conclition, 
and  the  condition  be  performed,  it  becomes  absolute,  and 
is  a  j)romise  to  pay  on  request.  For  ^instance,  r^^A^jA-i 
where  the  acknowledgment  was,  "  I  am  in  re- 
ceipt of  your  letter  of  the  6th,  handed  me  this  morning. 
I  have  forwarded  it  to  Mrs.  J.,  with  a  request  she  will 
come  over  without  delay  to  settle  the  business.  May  I 
beg  you  will  write  to  her  by  the  first  post  to  press 
payment,  and  what  she  may  be  short  I  will  assist  to 
make  up.  I  send  you  her  address."  This  w^as  held 
sufficient,  {u) 

In  short,  w^here  Lord  Tenterden's  Act  is  satisfied  by 
a  writing  duly  signed,   "  there  must  be  one  of  these 
three  things  to  take  the   case  out  of  the   Statute  [of 
I  Limitations].    Either  there  must  be  an  acknowledgment 
I  of  the  debt,  from  which  a  promise  to  pay  is  to  be  implied; 
!  or,  secondly,  there  must  be  an  unconditional  promise  to.|| 
pay  the  debt ;  or  thirdly  there  must  be  a  conditional,'  j 
promise  to  pay  the  debt,  and  evidence  that  the  condition; 
has  been  performed."  (2;) 

It  has  been  also  held,  that  an  acknowledgment  may 
prima  facie  satisfy  the  statute,  but  that  other  evidence 
is  admissible  to  rebut  such  inference ;  such,  for  example 
as  shows  that  a  document  was  drawn  up  with  a  Adew  to 
the  debt  being  paid  in  a  particular  way.  (y) 

It  is  not  necessary  that  the  sum  due  should  be  named : 
but  if  there  is  an  unequivocal  admission  '='of  the    ri^^A'j^-x 
debt,  and  a  difference  only  upon  the  amount, 
the  operation  of  the  statute  is  barred.  (^) 

(u)  Humphreys  v.  Jones,  14  M.  &  W.  3,  per  Parke,  B. 

(a;)  In  re  River  Steamer  Co.,  supra,  per  Mellish,  L.  J.,  at  p.  828. 

[y)  Cripps  v.  Davis,  12  M.  &  W.  159.  See  Collinson  v.  Margesson, 
27  L.  J.  (Ex.)  305. 

(z)  Waller  v.  Lacy,  1  M.  &  Gr.  (39  E.  C.  L.  R.)  54;  Gardner  v. 
M'Mahon,  3  Q.  B.  (43  E.  C.  L.  R.)  561. 


475 


SMITH  S    LAW    OF    CONTRACTS. 


Whether  an  acknowledgment  is  a  sufficient  admission 
or  not  to  take  a  case  out  of  the  statute,  being  substan- 
tially a  question  of  the  construction  of  a  written  docu- 
ment, is  for  the  judge  and  not  the  jury,  (a) 

The  promise  or  acknowledgment  must,  in  all  cases,  be 
made  before  action  brought ;  it  is  unavailable  if  made 
afterwards.  (5) 

As  observed  before,  (c)  the  Court  of  Common  Pleas 
decided,  in  Hyde  v.  Johnson  (c?)  that,  there  being  no 
mention  of  an  agent,  a  signature  by  an  agent  was  not 
sufficient  for  the  purpose,  so  that  it  is  curious  enough  to 
observe,  that  while  under  this  Act  a  man's  agent  could 
not  bind  him  by  the  acknowledgment  of  a  simple  con- 
tract debt,  yet  under  3  &  4  Wm.  IV.  c.  42,  s.  5,(e)  the 
agent  may  do  so  by  acknowledging  a  bond  debt  which 
is  a  contract  of  so  much  more  importance  in  the  eye  of 
the  law.  But  this  anomaly  has  been  removed,  and  the 
signature  of  an  agent,  both  within  this  statute  and  the  • 
16  &  17  Vict.  c.  113  (Irish  Com.  L.  Procedure  Act),  ss. 
27  and  24,  is  now  sufficient.  (/) 

r*4-7ri  *There  is  still  another  and  a  fifth  exception. 
This  arises  from  a  clause  in  Lord  Tenterden's 
Act,  which  exempts  from  the  operation  of  that  Act  the 
effect  of  any  payment,  whether  of  principal  or  interest. 
Before  Lord  Tenterden's  Act,  a  part  payment  whether 
of  principal  or  interest,  had  the  effect  of  taking  the  debt 
in  respect  of  which  it  was  paid  out  of  the  operation  of 
the  statute,  (^)  and  therefore  will  have  the  same  effect 

(a)  Sidwell  v  Mason,  26  L.  J.  (Ex.)  407  ;  2  H.  &  N.  306. 
(6)  Bateman  v.  Pinder,  3  Q.  B.  (43  E.  C.  L.  R.)  574. 
(c)  Ante,  p.  367. 

{d)  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  776. 
(e)  Ante,  p.  458. 
(/)  19  &  20  Vict.  c.  97,  s.  13. 

{g)  Whitcomb  v.  Whiting,  Dougl.  652  ;  Goddard  v.  Ingram,  3  Q.  B. 
(43  E.  C.  L.  R.)  839. 


LIMITATION.  476 

since,  (/i)  Indeed,  from  the  case  of  Whitcombe  v. 
Whiting,  just  cited,  you  will  see  that  where  there  are 
several  joint  debtors,  payment  by  one  took  the  debt  out 
of  the  operation  of  the  statute  as  against  the  others.  But 
it  has  been  enacted,  that  for  the  future  part  payment  by 
one  shall  not  deprive  another  of  the  benefit  of  the  enact- 
ments of  the  Statute  of  Limitations.  (?) 

There  have  been  many  decisions  as  to  what  is  a  suffi- 
cient payment  to  bar  the  statute,  of  which  some  notice 
is  expedient.  In  Bateman  v.  Pinder,(>^)  Wightman,  J., 
said,  "  Part  payment  is  an  acknowledgment,  and  an  ac- 
knowledgment, though  not  a  promise  in  terms,  may 
amount  to  one  virtually;  *but,'  where  it  is  not  1-^:4^-7-1 
made  till  after  action  brought,  it  cannot  prevent 
the  operation  of  the  statute."  Part  paj'ment  by  an 
agent  must  therefore  be  by  such  an  agent  as  is  author- 
ized to  make  such  payments  by  the  parties  to  be  bound 
by  this  act  of  his ;  and,  therefore,  if  made  by  a  receiver 
appointed  by  the  Court  of  Chancery  without  the  sanc- 
tion of  such  parties,  his  payments  do  not  amount  to  any 
acknowledgment  by  them,  and  do  not  against  them 
take  the  case  out  of  the  statute.  (/)  And  this  part  pay- 
ment may  be  made  by  a  bill,  as  weU  as  by  money,  for 
the  statute  intending  to  make  a  distinction  between 
mere  acknowledgments  by  word  of  mouth,  and  acknowl- 
edgments proved  by  the  act  of  payment,  it  cannot  be 
material  whether  such  payment  be  afterwards  avoided 

{h)  Wyatt  V.  Hodson,  8  Bing.  (21  E.  C.  L.  R.)  309  ;  Channel  v.  Ditch- 
burn,  5  M.  &  W.  494  ;  Bamfield  v.  Tupper,  7  Exch.  27  ;  Fordham  o. 
Wallis,  22  L.  J.  (Chanc.)  548. 

(i)  19  &  20  Vict.  c.  97,  s.  14 ;  Thompson  v.  Waithman,  26  L.  J.  (Ch.) 
134;  3  Drew.  628  ;  Jackson  v.  Woolley,  27  L.  J.  (Q.  B.)  448,  Ex.  Ch. 
See  27  L.  J.  (Q.  B.)  181  ;  Ridd  v.  Moggridge,  2  H.  &  N.-567. 

(A)  3  Q.  B.  (43  E.  C.  L.  R.)  574. 

[1)  Whitley  v.  Lowe,  2  De  G.  &  J.  704. 


477  smith's  law  of  contracts 

by  the  thing  turning  out  to  be  worthless.  The  intention 
and  the  act  by  which  it  is  evinced  remain  the  same. 
The  word  payment  must  be  taken  to  be  used  by  the 
Legislature  in  a  popular  sense  large  enough  to  include 
the  species  of  payment  by  a  bill.(wi)  Part  payment  of 
interest  equally  suffices.  (?i)  But  payment  of  interest 
under  compulsion  of  law  is  not  sufficient  to  take  the 
principal  debt  out  of  the  operation  of  the  Statute  of 
Limitations,  for  it  is  not  such  a  payment  that  a  promise 
r*A7R1  ^^  P^^  ^^^^  principal  *can  be  in  fact  inferred  from 
it.  On  this  ground,  where  within  six  years 
before  action  the  plaintiff  had  sued  the  defendants  for 
interest  upon  a  note  made  payable  with  interest,  and 
the  defendants  defended  the  suit,  the  plaintiff  recovered 
judgment  for  the  interest  claimed,  and  the  defendants 
thereupon  paid  the  amount  recovered,  this  payment  was 
held  insufficient,  (o)  Nor  is  it  essential  that  money  or 
a  bill  should  actually  pass ;  for  the  statement  of  a 
mutual  settlement  of  account  between  the  parties  is 
equivalent  to  a  payment,  if  the  party  to  whom  the  debt 
is  owing  agree  that  it  shall  be  paid  by  the  setting  off  of 
the  same  amount,  so  that  the  sum  set  off  is  evidence  of 
payment,  if  the  party  against  whom  it  is  set  off  did  not 
object  to  it  when  his  account  was  settled,  (jo)  The 
principle  of  this  is,  that  the  going  through  an  account 
with  items  on  both  sides,  and  striking  a  balance,  con- 
verts a  set-off  into  a  payment,  and  is  a  transaction  out 
of  which  a  new  consideration  may  be  said  to  arise.  (§') 
That  money  also  need  not  actually  pass,  is  shown  by 

{vi)  Turney  v.  Dodwell,  23  L.  J.  (Q.  B.)  137  ;  3  E.  &  B.  (77  E.  C.  L. 
R.)  136. 

[n)  Dowling  v.  Ford,  11  M.  &  W.  329. 

(o)  Morgan  v.  Rowlands,  L.  R.  7  Q.  B.  493  ;  41  L.  J.  (Q.  B.)  187. 

{p)  Scholoy  V.  Walton,  12  M.  &  W.  510. 

iq)  See  also  Ashby  v.  James,  11  M.  &  W.  542. 


LIMITATION.  478 

the  following  case.  After  a  debt  due  to  the  plaintiff 
from  his  son  had  been  barred  by  the  statute,  the  plain- 
tiff, his  son,  and  his  son's  wife,  had  an  interview  at 
which  the  interest  was  calculated.  The  plaintiff's  son 
then  *put  his  hand  into  his  pocket,  as  if  to  get  ^ 

out  the  money  to  pay  it.  The  plaintiff  stopped  '-  -' 
him,  and  writing  a  receipt  for  the  interest,  gave  it  to 
his  son's  wife,  saying  that  he  would  make  her  a  present 
of  the  money.  No  money  actually  passed  between  the 
parties,  but  the  transaction  was  held  to  be  a  sufficient 
payment  to  take  the  debt  out  of  the  Statute  of  Limita- 
tions, (r) 

Where  a  specific  sum  of  money  is  due,  as  upon  a 
promissory  note,  the  mere  fact  of  a  payment  of  a 
smaller  sum  by  the  debtor  to  the  creditor  is  some  evi- 
dence of  a  part  payment  to  take  the  case  out  of  the 
Statute  of  Limitations.  (5)  The  object  and  effect  of 
such  payments  are  rather  matters  of  evidence  than  of 
law ;  {t)  as  where  a  party,  .on  being  applied  to  for  in- 
terest, paid  a  sovereign,  and  said  he  owed  the  money 
but  would  not  pay  it,  it  was  considered  to  be  a  question 
for  the  jury  to  say  whether  he  intended  to  refuse  pay- 
ment, or  merely  spoke  in  jest.(M)  The  question  will 
always  turn  upon  the  distinction  between  cross  demands 
and  set-off  on  the  one  hand,  and  part  payment  on  the 
other ;  a  distinction  clear  enough  in  principle,  but  de- 
pendent for  its  application  on  facts,  and  therefore  not 
always  applicable  with  ease.(.r) 

(r)  Maber  v.  Maber,  L.  R.  2  Ex.  153  ;  36  L.  J.  (Ex.).  70. 

(s)  Burn  v.  Boulton,  15  L.  J.   (C.  P.)  97  ;  2  C.  B.   (52  E.  C.  L.  R.) 
476,  s.  c. 

(0  Nash  V.  Hodgson,  23  L.  J.  (Chanc.)  780. 

{u)  Wainman  v.  Kynman,  1  Ex.  118. 

(a;)  Worthington  v.  Grimsditch,  15  L.  J.  (Q.  B.)  52 ;  7  Q.  B.  (53  E.  C. 
L.  R.)  479,  s.  c. ;  Waugh  v.  Cope,  6  M.  &  W.  824. 
32 


480  smith's  law  of  contracts. 

p.!..oA-|  '""On  the  construction  of  this  part  of  Lord 
Tenterden's  Act,  the  case  of  Waters  v.  Tomp- 
kins (^)  contains  the  following  important  observations, 
with  which  this  exception  will  be  amply  explained : — 
"  On  the  first  perusal  of  the  first  clause  of  Lord  Tenter- 
den's Act,  it  would  seem  that  the  proviso  takes  the  case 
of  part  payment  of  principal,  or  payment  of  interest,  out 
of  the  operation  of  the  statute  altogether ;  and  there- 
fore, that  these  facts  would  not  only  have  the  same 
effect,  but  might  be  proved  exactly  in  the  same  way 
that  they  would  have  been,  if  the  Act  had  not  passed ; 
and  consequently,  by  the  defendant's  parol  admission, 
which  species  of  proof  of  a  simple  fact  is  not  exposed 
to  the  same  degree  of  danger  as  attended  the  admission 
of  acknowledgments  of  the  debt  itself.  But  the  Court 
of  Exchequer,  in  the  case  of  Willis  v.  Newham,(*')  de- 
cided that  the  verbal  acknowledgment  of  part  payment 
of  a  debt  was  insufficient,  and  they  construed  the  Act 
as  containing  a  general  provision,  that,  in  no  case  should 
an  acknowledgment  or  promise  by  words  onJi/  be  suffi- 
cient to  take  the  case  out  of  the  Statute  of  Limitations, 
whether  such  acknowledgment  w^ere  of  the  existence  of 
the  debt,  or  of  the  fact  of  part  payment ;  and  they  con- 
r*4Rn  si^^^^^^  ^^^^  proviso  as  Heaving  to  the  fact  of 
part  payment,  if  properli/  proved,  that  is,  not  hij 
an  achioivledgment  only,  the  same  effect  which  it  had 
before  the  statute.  And  this  construction  of  the  Act 
certainly  extends  the  remedy,  and  obviates  the  mischief 
to  be  guarded  against,  in  a  greater  degree  than  the 
words  taken  in  their  ordinary  sense  would  do.  But  if 
part  payment,  or  payment  of  interest,  is  proved  in  any 
legal  mode,  and  not  by  admission  only,  this  case  is  no 
authority  that  such  proof  is  not  sufficient.     The  Act  of 

{]])  2  Cr.  M.  &  R.  726.  (z)  3  Y.  &  J.  518. 


LIMITATION.  481 

9  Geo.  IV.,  as  explained  by  that  case,  does  not  prohibit 
or  qualify  the  ordinary  mode  of  legal  proof  in  any  re- 
spect, save  that  it  requires  something  more  than  mere 
admission.  The  meaning  of  part  payment  of  the  prin- 
cipal, is  not  the  naked  fact  of  payment  of  a  sum  of 
money,  but  payment  of  a  smaller  on  account  of  a  greater 
sum,  due  from  the  person  making  the  payment  to  him 
to  whom  it  is  made  ;  which  part  payment  implies  an 
admission  of  such  greater  sum  being  then  due,  and  a 
promise  to  pay  it:  and  the  reason  why  the  effect  of  such 
a  payment  is  not  lessened  by  the  Act  is,  that  it  is  not 
a  mere  acknowledgment  by  tvords,  but  it  is  coupled  with 
a  fact.  The  same  observation  applies  to  the  payment 
of  interest.  But  if  the  payment  of  a  sum  of  money  is 
proved  as  a  fact,  and  not  by  mere  admission,  there  is 
nothing  which  requires  the  appropriation  to  a  particular 
account  to  be  proved  by  an  express  declaration  of  the 
party  making  it  at  the  time ;  *such  appropria-  v^-mq^)^ 
tion  may  be  shown  by  any  medium  of  proof, 
and  many  instances  might  be  put  of.  full  and  cogent 
proof  of  such  appropriation,  where  nothing  was  said  at 
the  time  by  the  debtor ;  as  for  example,  if  the  day  before 
the  debtor  had  called  and  informed  the  creditor  that  he 
would,  the  day  after,  send  his  clerk  with  a  specific  sum, 
on  account  of  the  larger  debt,  then  described,  for  which 
the  action  was  brought,  and  should  require  a  receipt  for 
it,  and  the  clerk  did  pay  that  specific  sum,  and  took  the 
creditor's  receipt,  expressly  stating  the  account  on 
which  it  w^as  received,  and  delivered  it  to  his  employer; 
there  could  be  no  doubt  that  such  evidence  would  not 
only  be  admissible,  but,  if  distinctly  proved,  at  least  as 
satisfactory  as  a  declaration  accompanying  the  act  of 
payment."  After  considering  attentively  the  reasoning 
here  quoted,  the  student  will  be  prepared  to  hear,  that 


482 


SMITH  S   LAW   OF   CONTRACTS. 


[*483] 


by  a  subsequent  case,  in  which  the  Court  of  Exchequer 
Chamber  distinctly  overruled  Willis  v.  Newham,  it  was 
decided  that,  as  regards  the  evidence  of  payment,  an 
admission  of  payment  suffices,  although  not  in  writing, 
but  merely  by  word  of  mouth. (a)^ 

The  last  exception  to  which  I  have  to  advert  is  that 
arising  out  of  the  exception  in  the  statute  of  James  the 
First,  of  accounts  between  merchant  *and  mer- 
chant. I  advert  to  this  only  for  the  purpose  of 
showing  that  this  exception,  like  several  others,  has 
been  abrogated  by  the  statute  19  &  20  Yict.  c.  97,  s. 
9.  And  now  "all  actions  of  account  or  for  not  account- 
ing, and  suits  for  such  accounts  as  concern  the  trade  of 

(a)  Cleave  v.  Jones,  20  L.  J.  (Exch.)  238  ;  6  Exch.  573,  s.  c.  in  Exch. 
Ch. 

'  Upon  the  effect  of  payment  of  part,  either  principal  or  interest,  see 
Arnold  v.  Downing,  11  Barb.  554  ;  Smith  v.  Simms,  9  Ga.  418  ;  Evans 
V.  Smith,  34  Me.,  33  5  Jones  v.  Jones,  1  Fost.  219  ;  Whipple  v.  Stevens, 
2  Ibid.  219  ;  Sibley  v.  Phelps,  6  Cush.  172  ;  Bell  v.  Crawford,  8  Grat. 
110;  Biscoe  V.  Stone,  6  Eng.  39;  Wood  v.  AVylds,  Ibid.  754;  Chambers 
V.  Walker,  4  Rich.  548  ;  M'CuUough  v.  Henderson,  24  Miss.  92 ;  Ander- 
son V.  Robertson,  Ibid.  389  ;  Carroll  v.  Forsyth,  69  111.  127  ;  Merritt  v. 
Day,  38  N.  J.  (Law)  32 ;  Torrence  v.  Strong,  4  Oreg.  39  ;  Anderson  v. 
Baxter,  Ibid.  105  ;  English  v.  Wathen,  9  Bush  387  ;  U.  S.  v.  Wilder, 
13  Wall.  (S.  C.)  254  ;  Hopkins  v.  Stout,  6  Bush  375  ;  Egery  v.  Decrew, 
53  Me.  392  ;  Dyer  v.  Walker,  54  Ibid.  18  ;  Thorn  v.  Moore,  21  Iowa 
285  ;  Eaton  v.  Gillet,  17  Wis.  435.  A  part  payment  made  on  Sunday 
will  not  take  the  debt  out  of  the  statute  :  Clapp  v.  Hale,  112  Mass.  368. 
An  acknowledgment  or  new  promise  made  on  Sunday  will  remove  the 
bar:  Thomas  v.  Hunter,  29  Md.  406.  A  partial  payment  on  a  joint 
and  several  promissory  note,  by  one  of  several  makers,  will  not  prevent 
the  running  of  the  statute  as  to  the  other  makers :  Hunter  v.  Robertson, 
30  Ga.  479  ;  Hance  v.  Nair,  25  Ohio  St.  349  ;  contra,  Merrill  v.  Day,  38 
N.  J.  (Law)  32;  Black  v.  Dormar,  51  Mo.  31  ;  Pitts  v.  Hunt,  6  Lans. 
146  ;  Corlies  v.  Fleming,  1  Vroom  349.  And  see  also  Bogul  v.  Ver- 
milya,  10  Barb.  (S.  C.)  32;  Ellicott  v.  Nicholls,  7  Gill  85;  Whipple  v. 
Stevens,  2  Fost.  219 ;  Balcom  v.  Richards,  6  Cush.  360 ;  Reid  v. 
M'Naughton,  15  Barb.  168  ;  Tillinghast  v.  Nourse,  14  Ga.  641.  A  part 
payment  derived  from  a  collateral  security  is  not  sufficient :  Harper  v. 
Fairley,  53  N.  Y.  442. 


CONSTRUCTION.  483 

merchandise  between  merchant  and  merchant,  their  fac- 
tors or  servants,  shall  be  commenced  and  sued  within 
six  years  after  the  cause  of  such  actions  or  suits,  or 
when  such  cause  has  already  arisen,  then  within  six 
years  after  the  passing  of  this  Act;  and  no  claim  in  re- 
spect of  a  matter  which  arose  more  than  six  years  before 
the  commencement  of  such  action  or  suit,  shall  be  en- 
forceable b}''  action  or  suit  by  reason  only  of  some  other 
matter  of  claim  comprised  in  the  same  account  having 
arisen  within  six  years  next  before  the  commencement 
of  such  action  or  suit."  (J) 

There  are  a  few  other  rules  applicable  alike  to  every 
species  of  contract,  and  which  it  is  convenient  to  notice 
in  a  work  treating  like  this  of  the  general  principles  of 
the  law  of  contracts.  These  are  the  rules  according  to 
which  contracts  are  construed  in  courts  of  justice,  and 
the  student  will  probably  find  them  deserving  of  much 
interest  when  he  observes  that  they  are  not  merely  con- 
ventional rules  of  law,  but  are  the  canons  by  which  all 
writings  of  every  description  are  construed,  r^ioj^n 
*and  by  which  the  meaning  and  intention  of 
men  are  ascertained,  (c)  when  that  meaning  and  inten- 
tion are  indicated  not  by  their  words  or  writings  only, 
but  by  their  actions  and  conduct  also.^ 

{h)  See  Inglis  v.  Ilaigh,  8  M.  &  AY.  769  ;  Cottam  v.  Partridge,  4  M,  & 
Gr.  (43  E.  C.  L.  R.)  271. 

(c)  Doe  d.  Hiscocks  v.  Hiscocks,  5  M.  &  W.  363  ;  ante,  p.  47. 

^  White  V.  Booker,  4  Met.  (Ky.)  267  ;  Springsteen  v.  Samson,  32  N.  Y. 
703  ;  Hunter  v.  Anthony,  8  Jones  (Law)  385  ;  Rose  v.  Roberts,  9  Minn. 
119  ;  Karmuller  v.  Krotz,  18  Iowa  352  ;  Salmon  Falls  Co.  v.  Portsmouth 
Co.,  46  N.  H.  249 ;  Peckham  v.  Haddock,  36  HI.  38  ;  Chicago  v.  Selden, 
9  Wall.  50 ;  Caldwell  v.  Layton,  44  Mo.  220  ;  People  v.  Gosper,  3  Neb. 
285.  When  in  a  contract  words  of  a  doubtful  meaning  or  application 
are  used,  the  practical  construction  given  to  them  during  a  series  of 
years  by  the  parties  to  the  contract  should  prevail :  St.  Louis  Gaslight 
Co.  V.  St.  Louis,  46  Mo.  121  ;  Reading  v.  Gray,  37  N.  Y.  (Superior  Ct.) 
79  ;  Stapenhorst  v\  Wolff,  35  Ibid.  25. 


484  smith's  law  of  contracts. 

It  is  obviously  of  the  utmost  importance  tliat  these 
rules  of  construction  should  be  applied  with  consistency, 
and  indeed,  as  far  as  practicable,  with  uniformity.  In 
order  to  secure  the  attainment  of  these  objects,  the  con- 
struction of  all  written  instruments  belongs  to  the 
Judges,  who  may  reasonably  be  expected  to  apply  with 
uniformity  the  rules  with  which  they  are  by  study  and 
experience  familiar,  and  not  to  the  jury,  whose  habits 
of  mind  and  experience  are  necessarily  different  and 
various,  and  who,  in  many  cases  not  being  familiar  with 
the  rules,  and  in  all  cases  practically  unacquainted  with 
their  application,  cannot  reasonably  be  expected  to  apply 
them  with  uniformity. 

The  construction  of  all  written  instruments,  therefore,  "^ 
belongs  to  the  court  alone,  (c?)  whose  duty  it  is  to  con-  \ 
strue  all  such  instruments  as  soon  as  the  true  meaning 
of  the  words  in  which  they  are  couched,  and  the  sur- 
rounding circumstances,  if  any,  have  been  ascertained 
as  facts  by  the  jury ;  and  it  is  the  duty  of  the  jury  to 
take  the  construction  from  the  court,  either  absolutely, 
pjj., or-|  if  there  be  *no  words  to  be  construed  as  words 
of  art  or  phrases  of  commerce,  and  no  surround- 
ing circumstances  to  be  ascertained ;  or  conditionally, 
when  those  Avords  or  circumstances  are  necessarily  re- 
ferred to  them.  Unless  this  were  so,  there  would  be 
no  certainty  in  the  law ;  for  a  misconstruction  by  the 
court  is  the  proper  subject  (by  means  of  a  bill  of  excep- 
tions) of  redress  in  a  court  of  error ;  (e)  but  a  miscon- 
struction by  a  jury  cannot  be  set  right  at  all  effectually. 
A  very  good  example  of  what  is  here  said,  as  well  as  a 
clear  statement  of  the  rules  of  construction  which  the 

[d)  Nielson  v.  Harford,  8  M.  &  W.  823.  See  Smith  v.  Thompson,  8 
C.  B.  (65  E.  C.  L.  R.)  44  ;  Skull  v.  Glenister,  33  L.  J.  (C.  P.)  185. 

(e)  As  to  the  abolition  of  bills  of  exceptions  and  proceedings  in  error 
on  and  after  Nov.  2d  1874,  see  the  "  Supreme  Court  of  Judicature  Act, 
1873,"  Sched.  R.  49. 


CONSTRUCTION.  485 

judges  apply,  is  furnished  in  the  case  of  Simpson  v.  Mar- 
gitson;(/)  where  the  plaintiff,  an  auctioneer,  had  been 
employed  to  sell  an  estate  upon  the  terms  of  a  letter 
from  the  defendant  to  him,  which  contained  these  words, 
"  the  terms  upon  which  the  sale  of  the  North  Cove 
estate  is  offered  to  you  are  <£1  per  cent,  upon  the  pur- 
chase-money ;  that  to  include  every  expense,  and  to  be 
paid,  if  sold  by  auction  or  within  two  months  after ; 
half  per  cent,  if  not  sold  at  auction  or  within  two 
months  after,  upon  a  reserved  price."  The  defendant 
contended,  that  month  in  temporal  matters  meant  lunar 
month  ;  unless  either  from  the  context  or  from  the  usage 
in  a  trade,  business,  or  place,  it  is  made  to  appear  that 
the  parties  ^intended  another  meaning;  and  v^-aqpi, 
nothing  of  the  sort  appearing  in  that  case,  that 
it  was  the  duty  of  the  judge  to  have  construed  the  con- 
tract and  decided  against  the  plaintiff.  "  If  the  con- 
text," said  the  court,  "  shows  that  calendar  months  were 
intended,  the  Judge  may-  adopt  that  construction.  ( g) 
If  the  surrounding  circumstances  at  the  time  when  the 
instrument  was  made  show  that  the  parties  intended  to 
use  the  word  not  in  its  primary  or  strict  sense,  but  in 
some  secondary  meaning,  the  Judge  may  construe  it 
from  such  circumstances  according  to  the  intention  of 
the  parties.  (A)  If  there  is  evidence  that  the  word  was 
used  in  a  sense  peculiar  to  a  trade,  business,  or  place, 
the  jury  must  say  whether  the  parties  used  it  in  that 
peculiar  sense,  (z)     If  the  meaning  of  a  word  depends 

(/)  11  Q.  B.  (63  E.  C.  L.  R.)23. 

\g)  Long  V.  Gale,  1  M.  &  Sel.  Ill  ;  Regina  v.  Chawton,  1  Q.  B.  (41  E. 
C.  L.  R.)  247. 

[h]  Goldshede  v.  Swan,  1  Exch.  154;  Walker  v.  Hunter,  2  C.  B.  (52 
E.  C.  L.  R.)  324  ;  Bacon's  Maxims,  Reg.  10;  Mallan  v.  May,  13  M.  & 
W.  511  ;  Beckford  v.  Crutwell,  1  M.  &  R.  187. 

ii)  Smith  V.  AVilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  728 ;  Grant  v.  Mad- 
dox,  15  M.  &  W.  737  •,  Myers  v.  Sari,  30  L.  J.  (Q.  B.)  9. 


486  smith's  law  of  contracts. 

upon  the  usage  of  the  phice  where  anything  under  the 
instrument  is  to  be  done,  evidence  of  such  usage  must 
be  left  to  the  jury.(^)  Also,  the  jury  may  have  to  give 
the  meaning  of  some  technical  words.  But  the  present 
is  not  within  either  of  the  above  principles  ;  nor  can  we 
r*ift71  ^^^  ^^^  authority  '''for  saying  that  the  conduct 
of  the  parties  to  a  written  contract  is  alone  ad- 
missible evidence  to  withdraw  the  construction  of  a 
word  therein  of  a  settled  primary  meaning  from  the 
Judge,  and  to  transfer  it  to  the  jury." 

It  would  have  appeared  needless  to  remark  that  the 
same  sense  is  to  be  put  upon  the  words  of  a  contract  in 
an  instrument  under  seal,  as  would  be  put  upon  the 
same  words  in  any  instrument  not  under  seal,  if  the 
question  had  not  actually  been  raised  in  argument ;  for 
the  same  intention  will  be  expressed  by  the  same  words 
in  a  contract  in  writing  whether  with  or  without  seal. 
Nor  can  it  signify  in  what  court  the  instrument  is  con- 
strued ;  for  the  question,  what  is  the  meaning  of  the 
contract,  cannot  be  affected  by  the  question,  what  is  to 
be  the  consequence  of  the  contract,  or  what  the  remedy 
for  the  breach,  or  by  any  other  matter  in  which  the 
practice  of  the  courts  may  differ.  The  rule  of  construc- 
tion, therefore,  must  be  the  same,  whether  in  a  civil 
or  a  criminal  court,  or  whether  in  a  court  of  law  or 
equity. 

In  the  first  place,  it  is  the  most  important  of  all  the  I 
rules  of  construction,  that  the  whole  of  the  agreement 
lis  to  be  considered.  This  is  so.  reasonable  and  clear, 
'that  no  explanation  is  required  of  it ;  for  obviously  it 
cannot  be  the  intention  of  the  parties  to  an  agreement, 
with  stipulations  or  qualifications,  that  some  of  them 
should    be   altogether  disregarded,  and  a  part  of  the 

(^•)  Robertson  v.  Jackson,  2  C.  B.  (f'2  E.  C.  L.  R.)  412;  Bourne  v.  Gat- 
liff,  11  CI.  &  F.  45.     See  Hitchin  v.  Groom,  5  C.  B.  (57  E.  C.  L.  R.)  515. 


CONSTRtCTION.  488 

agreement  magnified  *into  an  equality  with  the    r-iMoon 
whole  ;  but,  on  the  contrary,  such  a  meaning  is 
to  be  given  to  particular  parts  as  will,  without  violence 
to  the  words,  be  consistent  with  all  the  rest,  and  with  the 
evident  object  and  intention  of  the  contracting  parties. 

The  recent  case  of  Monypenny  v.  Monypenny,  (^)  de- 
cided by  Lord  Chancellor  Chelmsford,  contains  one  of 
the  most  luminous  judgments  to  be  found  in  the  books 
on  this  most  important  rule,  and  deserves  so  much  atten- 
tion that  I  have  here  stated  it  at  some  length.  Phillips 
Monypenny  vested  a  term  of  100  years  in  trustees  for 
the  better  security  of  the  payment  of  a  rent  charge, 
being  his  wife's  jointure.  Phillips  Monypenny  died  in 
1841,  After  his  death  it  was  discovered  that  of  the 
principal  part  of  the  property  charged  with  the  annuity, 
Phillips  Monypenny  was  only  tenant  for  life,  and  on 
his  death  it  became  another's.  As  the  charge  upon  the 
land  of  which  he  was  such  tenant  ceased,  it  became 
material  to  inquire  whether  there  was  any  covenant  in 
the  deed  to  bind  his  personal  representatives.  One  of 
the  Vice-Chancellors,  assisted  by  two  of  the  Common 
Law  Judges,  decided  that  there  was  no  such  covenant, 
and  the  case  was  reconsidered,  on  appeal,  by  Lord  Chan- 
cellor Chelmsford. 

*"The  learned  Barons,"  said  the  Lord  Chan-  ^...,0^-1 
cellor,  "who  assisted  the  Vice-Chancellor  in  •-  ^ 
putting  a  legal  construction  on  the  deed,  were  clearly 
of  opinion  that  there  were  no  words  in  it  creating  a 
covenant.  They  examined  the  recital,  grant,  and  the 
power  of  distress  in  succession,  and  dismissed  each  of 
them  in  its  turn,  with  the  remark  that  it  did  not  operate 

[l]  28  L.  J.  (Ch.)  303;  31  L.  J.  (Ch.)  269;  and  9  11.  L.  C.  114; 
M'Intyre  v.  Belcher,  32  L.  J.  (C.  P.)  254  ;  14  C.  B.  (N.  S.)  (108  E.  C. 
L.  R.)  654. 


489  smith's  law  of  contracts. 

as  a  covenant.  Even  the  strong  and  appropriate  words 
used  in  the  creation  of  the  power  to  distrain  did  not 
shake  their  opinion ;  for  as  to  them  they  say,  '■  Nor  do 
we  think  that  the  words  used  in  the  creation  of  the 
power  to  distrain,  extensive  as  they  are/ — "  covenants, 
grants,  and  agrees,  that  it  shall  he  lawful  when  the 
rent-charge  is  in  arrear  for  the  grantee  to  distrain  on 
the  premises," — are  an  express  covenant  that  he  shall 
have  power  to  do  so.  We  think  that  "  covenants  and 
agrees,"  means  no  more  than  "grants."  Then  the 
learned  Judges  proceeded  to  inquire  whether  there  is 
any  implied  covenant  arising  out  of  the  general  words 
used  by  the  grantor,  and  properly  observe,  that  such  a 
covenant  must  be  a  covenant  at  law,  and  that  there  can- 
not be  a  covenant  implied  from  such  words ;  that  the 
covenantor  had  an  equitable  estate ;  and  they  conclude 
that  the  deed  contains  neither  an  express  nor  an  implied 
covenant,  of  which  the  claimant  can  avail  herself  to  en- 
force the  payment  of  her  jointure,  {%.  e.,  the  charge  on 
the  land) .  After  the  most  careful  consideration  of  every 
r*4.Q01  ^'^^^'^  ^^  ^^^^  deed,  I  cannot  bring  *my  mind  to  a 
similar  conclusion.  In  the  course  of  the  argu- 
ment of  the  counsel  against  the  claim,  I  have  been 
earnestly  requested  to  examine  the  whole  scheme  of 
the  deed,  in  order  to  be  enabled  to  put  a  satisfactory 
construction  upon  those  parts  of  it  which  involve  the 
question  to  be  decided.  Undoubtedly,  as  Sheppard 
says  (Touchstone  87),  in  the  construction  of  all  parts 
of  all  kinds  of  deeds,  amongst  the  rules  to  be  universally 
observed  is  one,  '  that  the  construction  be  made  upon 
the  entire  deed,  and  that  one  part  of  it  doth  help  to 
expound  another,  and  that  every  word  (if  it  may  be) 
may  take  effect  and  none  be  rejected.'  Where  words 
are  ambiguous,  or  the  intention  is  not  manifest  and 


construction/'  490 

plain,  it  is  useful  and  necessary  to  recur  to  other  parts 
of  the  deed  for  interpretation :  but  this  mode  of  con- 
struction is  frequently  invoked  for  the  purpose  of  giving 
a  different  meaning  to  words  from  that  which  they  ordi- 
narily bear ;  and  on  the  present  occasion  the  assistance 
of  the  whole  scheme  of  the  deed  seems  to  be  used,  not 
that  every  word  may  take  effect,  but  for  the  purpose  of 
weakening  the  appropriate  words.  It  is  unnecessary, 
in  my  opinion,  to  resort  to  any  more  of  the  deed,  except 
to  observe  that  the  marriage  consideration  runs  through 
every  part  of  it.  It  was  clearly  to  Phillips  Monypenny's 
interest  that  Mrs.  Monypenny  should  have  a  rent-charge 
out  of  his  e&tate,  and  he  believed  himself  to  be  the  abso- 
lute owner  of  it.  The  deed  therefore  contains  a  recital 
that,  'upon  the  treaty  *for  the  marriage  he  had 
agreed  to  secure  to  her  an  annual  sum  or  rent-  ^  -* 
charge,  to  be  issuing  and  payable  out  of  the  manors  and 
other  hereditaments  charged  therewith,  and  of  or  to 
which  he  the  said  Phillips  Monypenny  is  entitled  or 
seised  in  fee  simple  ;'  and  in  the  granting  part,  '  he  gives 
and  grants  the  annual  sum  or  rent-charge  to  be  issuing 
out  of  certain  manors  and  lands,  and  generally  out  of 
messuages,  lands,  tenements  and  hereditaments  in  the 
several  parishes  in  the  county  of  Kent,  of  or  to  which 
he  or  any  person  or  persons  in  trust  for  him  is  or  are 
seised  or  entitled  for  an  estate  of  inheritance  at  law  or 
in  equity.'  It  is  said  that  the  alternate  words  in  the 
recital  and  in  the  '  grant '  express  an  uncertainty  as  to 
the  nature  of  the  title  of  Phillips  Monypenny  to  the 
estates  charged :  and  that,  according  to  the  case  of 
Right  d.  Jefferys  v.  Bucknell,  (»z)  they  created  no  es- 
toppel against  Phillips  Monypenny.  But. in  that  case 
the  question  related  to  two  houses  only,  which  were 

(m)  2  B.  &  Ad.  (22  E.  C.  L.  11.)  278. 


491  smith'-s  law  of  contracts. 

mortgaged,  and  the  deed  reciting  that  the  mortgagor 
was  legally  or  equitably  entitled  to  the  premises,  and 
he  covenanting  that  he  was  legally  or  equitably  seised 
in  his  own  demesne  as  of  fee,  it  was  clear  that  there 
was  no  certain  or  precise  averment  of  any  seisin  in  him. 
There  the  charge  was  intended  to  apply  to  various  lands 
of  the  grantor ;  and  as  it  is  an  undoubted  canon  of  con- 
r*ztQ9"l  struction,  that,  *if  possible,  you  should  give 
effect  to  every  part  of  a  deed,  I  find  no  diffi- 
culty in  considering  the  words,  both  in  the  recital  and 
in  the  grant  not  as  expressive  of  any  uncertainty,  but 
as  applying  to  lands  held  by  different  titles,  and  there- 
fore reddendo  singula  singidis  to  all  the  lands  mentioned, 
whether  Phillips  Monypenny  was  legally  or  equitably 
entitled  to  them.  The  effect  of  this  mode  of  reading 
the  recital  and  the  grant  will  be,  that  the  annuity  will 
be  a  charge  upon  all  the  land,  whether  Phillips  Mony- 
penny's  title  to  them  was  legal  or  equitable,  although 
the  power  to  distrain  would  be  limited  to  those  only  of 
which  he  had  the  legal  estate.  The  converse  of  this  is 
put  by  Lord  Coke  in  p.  47  of  his  Commentary,  where 
he  says  :  '  If  a  man  seised  of  lands  in  fee,  and  possessed 
of  a  term  for  many  years,  grant  a  rent  out  of  both  for 
life  in  tail  or  in  fee,  with  clause  of  distress  out  of  both, 
this  rent,  being  a  freehold,  doth  issue  only  out  of  the 
freehold,  and  the  lands  in  lease  are  only  charged  with 
the  distress.'  It  will  be  said  that  the  words  'give, 
grant,  bargain,  and  sell,'  cannot  operate  as  a  covenant, 
because  they  merely  assert  a  power  to  give  or  create 
an  annuity ;  at  the  same  time,  the  plain  and  ordinary 
effect  of  the  word  'covenant'  has  been  denied,  and  it 
has  been  treated  as  synonymous  with  the  word  '  grant.' 
But  in  construing  this  deed  I  should  be  much  more  dis- 
posed to  give  the  word  '  grant '  the  operation  of  a  cove- 


c  CONSTRUCTION.  492 

nant  than  to  transform  the  word  'covenant'  into  a  grant. 
*It  is  undoubtedly  law,  that  a  deed  that  is  in-  pMO'^-] 
tended  and  made  to  one  purpose  may  accrue  to 
another;  for  if  it  would  not  take  effect  in  the  way  that 
it  was  intended,  it  may  take  effect  another  way :  Shep- 
pard's  Touchstone  82.  There  is  an  admirable  judgment 
of  Lord  Chief  Justice  Willes  on  this  subject  in  Roe  d. 
Wilkinson  v.  Tranmarr,  (?^)  which  has  a  considerable 
bearing  on  the  point  in  question.  There  Thomas 
Kirkby,  in  consideration  of  natural  love  to  his  brother 
Christoi:)her,  and  for  £100,  granted,  released,  and  con- 
firmed to  Christopher  the  premises  in  question  after  his 
(Thomas's)  death,  and  covenanted  and  granted  that  the 
premises  should  after  his  death  be  held  by  Christopher 
and  the  heirs  of  his  body,  and  after  their  decease,  to 
John  Wilkinson  and  his  heirs  ;  and  it  was  held  that  the 
deed  would  not  operate  as  a  release  because  it  attempted 
to  convey  a  freehold  in  future,  but  that  it  was  good  as 
a  covenant  to  stand  seised ;.  and  the  Chief  Justice  said, 
'■  there  is  likewise  one  thing  in  the  present  case  much 
stronger  than  in  any  of  the  cases  which  have  been  cited 
on  the  one  side  or  the  other,  for  here  is  not  only  the 
word  grant,  which  has  often  been  construed  as  a 
word  of  covenant,  but  likewise  the  grantor  expressly 
covenants  in  two  places  in  the  deed,  that  the  estate 
shall  go  to  John  Wilkinson  in  such  a  manner  as  he 
granted  it.'  In  the  present  case,  if  the  words  creating 
the  annual  sum  or  yearly  rent-charge  are  to  be  r^:AQLA-\ 
•"^construed  strictly  as  a  grant  and  nothing  more, 
then  it  was  absolutely  void  from  the  first  and  never 
could  have  any  inception,  because  it  was  not  to  begin 
until  after  the  death  of  Phillips  Monypenny,  and,  on  his 
death,  the  estate  on  which  it  is  charged  came  to  an  end. 

(n)  Willes  682 ;  2  Smith's  L.  C.  6th  ed.  p.  468. 


494  smith's  law  of  contracts. 

Why,  under  these  circumstance,  it  being  the  clear  inten- 
tion of  those  parties  that  the  deed  should  operate,  if  it 
could  not  take  effect  as  a  charge,  should  it  not  be  con- 
strued to  be  a  covenant  to  pay  the  annual  sum  of  £300, 
which  would  be  binding  upon  the  executors  of  Phillips 
Monypenny,  though  not  named  ?  It  is  unnecessary  to 
multiply  authorities  to  show  that,  according  to  what 
Lord  Mansfield  says,  in  Lant  v.  Morris, (o)  'no  partic- 
ular technical  words  are  requisite  towards  making  a 
covenant,'  for  in  this  deed  there  is  a  clause  in  which 
this  peculiar  and  appropriate  word  is  to  be  found  in 
giving  the  grantor  power  to  distrain  for  the  rent-charge 
— Phillips  Monypenny,  for  himself,  his  heirs,  and 
assigns,  covenants,  grants,  and  agrees.'  I  asked  more 
than  once  in  the  course  of  the  argument,  what  would 
have  been  the  effect  of  the  deed  if  it  had  simply  con- 
tained this  clause  of  distress  ?  I  was  not  aware  my 
question  almost  received  an  answer  from  Littleton  him- 
self;  for  he  says,  in  the  course  of  section  221:  'Also,  if 
one  make  a  deed  in  this  manner,  that  if  A.,  of  B.,  be  not 
yearly  paid  at  the  feast  of  Christmas,  for  the  term  of 
P^iqr-i  his  life,  *twenty  shillings  of  lawful  money,  that 
then  it  shall  be  lawful  for  the  said  A.,  of  B.,  to 
distrain  for  this  in  the  manor  of  F.,  &c. :  this  is  a  good 
rent-charge,  because  the  manor  is  charged  with  the  rent 
by  way  of  a  distress.'  But  he  adds — 'And  yet  the  per- 
son of  him  who  makes  such  deed  is  discharged  in  the 
case  of  an  action  of  annuity,  because  he  doth  not  grant 
by  his  deed  any  annuity  to  the  said  A.,  of  B.,  but 
granteth  only  that  he  may  distrain  for  such  annuity.' 
Now  upon  this,  put  the  case  that  a  person  '  covenants, 
grants,  and  agrees'  for  a  power  of  distress  for  an  annual 
sum  or  1  ent-charge  upon  land  in  which  he  has  nothing. 

(o)   1  Burr.  290. 


CONSTRUCTION.  495 

If  it  is  a  rule  that  every  word  in  a  deed  must  have  effect 
given  to  it  if  possible,  and  none  ought  to  be  rejected, 
and  there  is  another  rule  that  if  a  deed  cannot  take 
effect  in  the  way  intended,  it  shall  take  effect  in  another 
way, — why  should  not  these  words  have  each  its  due 
effect,  and  after  the  creation  of  the  rent-charge  by  the 
grant  of  the  power  of  distress,  why  should  not  the  cove- 
nant, applied  to  the  words  '  annual  sum,'  create  a  per- 
sonal liability  in  the  grantor  and  his  executors  ?  I  am 
aware  that  the  grantor  in  this  clause  of  distress  binds 
only  his  heirs  and  assigns,  and  not  his  executors ;  and 
it  was  insisted,  though  not  very  strongly,  in  argument, 
that  this  showed  an  intention  that  his  executors  should 
not  be  bound.  I  inquired  whether  there  was  any  author- 
ity to  be  found  that  executors  in  such  a  case  would  not 
be  liable,  and  I  was  told  *that  none  had  been  r^ciqA"! 
discovered ;  and  I  should  have  been  surprised 
to  have  learned  that,  the  rule  being  that  heirs  are  in 
general  only  bound  if  named,  and  that  executors  are 
bound  although  not  named,  the  naming  the  heirs  for  the 
purpose  of  binding  them  should  be  considered  to  amount 
to  an  exclusion  of  the  executoft,  whom  it  was  unneces- 
sary to  name.  But  had  there  been  any  such  authority, 
I  should  have  thought  it  inapplicable  to  the  present 
case,  in  which  there  being  no  heirs  to  be  bound,  as  there 
was  nothing  to  descend,  the  naming  them  could  have  no 
greater  effect  than  if  they  had  been  altogether  omitted 
from  the  covenant. 

"  It  is  not  necessary  for  me  to  consider  the  question 
as  to  whether  a  covenant  could  have  been  implied  from 
the  words  of  the  deed,  if  there  had  been  no  express 
covenant.  I  proceed  on  the  covenant,  which  I  consider 
to  be  expressly  created  by  the  language  of  the  parties. 
I  think  the  appeal  must  be  allowed,  and  the  claim 
allowed  also." 


496  smith's  law  of  contracts. 

This  rule  has  been  so  admirably  illustrated  by 
another  very  recent  case,  that  I  have  inserted  the  most 
material  facts  and  arguments  used  in  it,  in  applying 
and  limiting  the  rule.  This  is  the  case  of  Piggott  v. 
Stratton,  decided  by  the  Court  of  Appeal  in  Chancery, 
and  is  as  follows: — 

In  1845,  Sir  R.  Simeon  demised  to  William  Stratton 
three  pieces  of  land  marked  A.,  B.,  and  C,  Stratton 
r*4.Q71  covenanting  not  to  build  on  the  piece  marked  C, 
except  in  a  certain  manner,  which  *would  leave 
intervals  giving  a  sea-view  to  houses  built  on  the  piece 
marked  B.  Stratton  granted  an  underlease  of  part  of 
B.  to  one  Harbour,  and  by  the  underlease  covenanted 
to  observe  his  own  covenants  in  the  original  lease,  and 
effectually  to  indemnify  the  underlessee,  his  executors, 
administrators,  and  assigns  therefrom.  Harbour  sold  and 
assigned  his  underlease  to  the  plaintiff.  Stratton  after- 
wards surrendered  the  original  lease,  obtained  another 
not  containing  the  restrictive  covenants,  and  proceeded 
to  build  on  C.  in  a  manner  which  would  exclude  the 
houses  on  B.  from  the  sea-view.  The  Lord  Chancellor 
Campbell,  sitting  in  the  Full  Court  of  Appeal,  decided 
that  the  covenants  in  the  underlease  to  observe  those 
in  the  original  lease,  had  the  same  effect  as  if  they  had 
been  repeated  in  the  underlease,  notwithstanding  that 
the  lease  was  surrendered;  and  an  injunction  was  granted 
to  prevent  Stratton  from  violating  them.(^;) 

"The  first  question,"  said  Lord  Campbell,  "depends 
upon  whether  Stratton  is  to  be  considered,  after  surren- 
dering to  Sir  Richard  Simeon  the  lease  of  1845,  as 
under  a  covenant  to  Harbour  not  to  build  houses  on  the 
land  marked  C.  in  that  lease,  so  as  to  obstruct  the  sea- 
view  from  houses  built  on  the  land  marked  B.,  and  de- 

[p)  Piggott  V.  Stratton,  29  L.  J.  (Ch.)  1. 


CONSTRUCTION.  497 

pends  entirely  upon  the  construction  of  the  underlease 
of    1851    from  *Stratton   to    Harbour,  regard    r::Mgs"| 
being  had  to  certain  facts  then  existing.     These 
facts  are,  that  by  the  lease  of  1845  Sir  R.  Simeon  had 
demised  for  999  years  a  part  of  his  estate  in  the  Isle  of 
Wight,  on  the  Solent,  consisting  of  three  plots  marked 
A.,  B.,  and  C,  and   Stratton  had   covenanted  that  he 
would  not  build  houses  on  C.  without  a  certain  interval 
between  them,  which  would  have  permitted  a  sea-view 
across  C.  from  houses  built  on  B.;  that  in  the  year  1851 
Stratton  proposed  to  underlet  to  Harbour  for  970  years 
a  considerable  portion   of  the   plot  marked  B.  for  the 
purpose  of  .building  marine  villas  upon  it;  and  that  the 
value  of  such  land  depends  materially  upon  the  houses 
to  be  erected  upon  it  having  a  view  of  the  sea.     Under 
these  circumstances,  the  underlease  of  1851  was  exe- 
cuted, containing  a  covenant  by  Stratton  with  Harbour, 
by  which,  after  a  recital  of  the  lease  of  1845,  Stratton, 
for   himself,  his   heirs,   executors,   administrators,  and 
assigns,  covenanted   with  Harbour,  his   executors,  ad- 
ministrators, and  assigns,  that  he,  Stratton,  his  execu- 
tors,   administrators,   and   assigns,    would    thenceforth 
observe   the   lessee's   covenant  contained  in  the  same 
lease.     The  underlease  does  not  repeat  the  words  of  the 
covenant  in  the  lease  as  to  the  interval  to  be  left  be- 
tween the  houses  to  be  built  on  C.     But  verba  relata 
inesse  videantur;  and  according  to  the  dictum  of  Parke, 
B.,  in  Doughty  v.  Bowman, (i/)   'A  covenant  to  perform     ^ 
^  *the  covenants  of  a  lease  has  no  other  effect    r:;:iQQ-|     /"'^ 
'      than  if  the  former  covenants  had  been  inserted.' 

I  conceive,  therefore,  that  this  covenant  in  the  under- 
lease was  tantamount  to  a  covenant  by .  Stratton,  for 
himself,  his  heirs,  executors,  administrators,  and  assigns, 

[q]  11  Q.  B.  (63  E.G.  L.  R.)  454. 
33 


499  smith's  law  of  contracts. 

not  to  build  houses  on  C.  without  leaving  the  stipulated 
interval  between  them.  Is  not  this  covenant  still  bind- 
ing upon  Stratton  ?  He  admits  that  it  was  binding  on 
him  until  he  surrendered  the  lease  of  1845,  and  that 
until  then  an  injunction  might  hav.e  been  obtained  by 
Harbour  against  his  building  houses  on  C.  contrary  to 
the  covenant.  He  now  relies  upon  the  surrender.  I 
entirely  concur  in  the  general  maxim,  that  a  covenant 
to  perform  the  covenants  of  a  lease,  is  only  binding 
during  the  subsistence  of  the  lease ;  but,  looking  to  the 
covenant  in  this  underlease,  it  is  evident  to  me  that  the 
parties  intended  that,  in  as  far  as  it  conferred  any  benefit 
upon  Harbour,  it  should  remain  in  force  during  the  cur- 
rency of  the  underlease.  •  Harbour  acquired  a  material 
benefit  by  Stratton's  covenant  with  him  to  perform  the 
covenant  in  the  lease  from  Sir  R.  Simeon  as  to  the 
mode  in  which  the  houses  were  to  be  erected  between 
B.  and  the  margin  of  the  Solent.  It  cannot  properly 
be  called  an  easement  or  servitude  over  C.  But  Har- 
bour acquired  a  right  to  an  immunity  which  materially 
enhanced  the  value  of  the  land  which  was  sub-let  to 
him,  .and  restrained  the  use  of  part  of  the  land  demised 
r-t^rrvriT  to  Strattou.  If  thcrc  *had  been  in  the  under- 
lease  a  direct,  express,  or  specific  covenant  by 
Stratton  that,  during  the  currency  of  the  underlease, 
he  would  not  build  upon  C.  so  as  to  injure  the  prospect 
from  B.,  it  was  not  contended  that  this  covenant  would 
have  been  aifected  by  the  surrender.  But  I  conceive 
that  the  covenant  to  perform  all  the  covenants  in  the 
lease  which  contained  such  a  covenant,  is  exactly 
equivalent.  When  Stratton  had  sub-let  B.,  at  the  same 
time  restraining  the  mode  of  enjoying  C.  dui'ing  the  cur- 
rency of  the  underlease,  he  could  not  by  any  surrender 
derogate  from  the  right  which  Harbour  had  acquired. 


CONSTRUCTION.  500 

Harbour  was  a  stranger  to  the  surrender,  and  could  not 
be  i^rejudiced  by  it. 

"  If  Stratton,  before  the  surrender  of  the  lease  of 
1845,  is  supposed  to  haA^e  coA^enanted  in  the  underlease 
to  Harbour  so  as  to  give  Harbour  an  interest  in  any 
part  of  the  land  devised  by  the  lease  of  1845,  upon 
that  interest  the  subsequent  surrender  could  have  no 
operation.  That  such  was  the  intention  of  the  parties 
when  the  underlease  of  1851  was  executed,  I  cannot 
doubt,  and  I  think  that  this  intention  is  sufficiently  mani- 
fested hy  the  language  they  have  emijloyed. 

"  To  get  at  the  intention  of  covenants  it  is  not  neces- 
sary to  look  for  any  technical  form  of  words.  The 
principles  upon  which  covenants  are  to  be  construed  are 
elaborately  and  lucidly  laid  down  and  illustrated  in  the 
judgment  of  Lord  Chancellor  Chelmsford  in  the  case  of 
Monypenny  v.  Monypenny,  *in  which  he  over-  r.-;:-A-|-| 
ruled  (I  think  very  properly)  the  judgment  of 
two  Common  Law  Judges,. who  had  departed  from  these 
principles. 

The  few  strong  expressions  used  by  Lord  Tenterden 
in  the  case  of  Doe  d.  Bywater  v.  Brandling,  (r)  as  to  the 
mode  of  construing  Acts  of  Parliament,  are  equally  ap- 
plicable to  the  mode  of  construing  contracts ;  and  their 
reasonableness  will  appear  from  the  mere  enunciation  of 
them  : — "  We  are  to  look,  not  only  at  the  language  of 
the  preamble  or  of  any  particular  clause,  but  at  the  lan- 
guage of  the  Ayhole  Act ;  and  if  we  find  in  the  preamble 
or  in  any  particular  clause,  an  expression  not  so  large 
and  extensive  in  its  import  as  those  used  in  other  parts 
of  the  Act,  and  upon  a  view  of  the  whole  Act  we  can 
collect  from  the  more  large  and  extensive  expressions 
used  in  other  parts  the  real  intention  of  the  Legislature, 

(r)  7  B.  &  C.  (14  E.  C.  L.  K.)  660. 


501  '     smith's  law  of  contracts. 

it  is  our  duty  to  give  effect  to  the  larger  expressions, 
notwithstanding  the  phrases  of  less  extensive  import  in 
the  preamble  or  in  any  particular  clause."  In  like 
manner,  general  words  may  be  restrained  by  the  re- 
cital, where  it  is  evident  from  the  whole  agreement  that 
they  were  intended  to  apply  to  the  matter  recited. 
Thus,  a  deed  recited  that  disputes  were  subsisting  be- 
tween Simons  and  Johnson,  about  which  actions  at  law 
had  been  brought,  and  that  it  had  been  agreed,  in  order 
pjj.r  rxo-1  to  put  an  *end  thereto,  that  each  of  them  should 
execute  a  release  of  all  actions  and  causes  of 
action,  claims,  and  demands  which  each  of  them  then 
had  or  might  claim  by  reason  of  anything  whatsoever. 
"  I  cannot  read  this,"  said  Lord  Tenterden,  "  without 
seeing  that  the  release  which  follows  was  intended  to 
apply  to  the  matter  recited,  namely,  the  actions  then 
depending,  and  that  the  object  was  to  put  an  end  to 
them.  The  generality,  of  the  language  was  therefore 
to  be  confined  by  the  recital."  (s) 

An  important  instance  of  the  rule  which  we  have  I 
been  considering,  is,  that  where  general  words  follow  | 
others  of  more  particular  meaning,  they  are  to  be  con-  | 
strued  as  applicable  to  things  ejusdem  generis  with  the  \ 
former  particular  words,  {t)     Thus,  an  action  was  brought  I 
i^  upon  a  policy  of  insurance  in  the  ordinary  form,  wherein  ] 
I  the  perils  which  the  insurers  are  to  bear  are  stated  to  be  | 
"  of  the  sea,  men-of-war,  fire,  enemies,  pirates,  rovers, 
thieves,  jettisons,  letters  of  mart  or  countermart,  sur- 
prisals,  takings  at  sea,  arrests,  restraints,  and  detain- 
ment  of  all  kings,  princes,  and  people,  of  what  nation, 

(s)  Simons  v.  Johnson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  175 ;  Payler  v. 
Homershani,  4  M.  &  Sel.  423. 

(0  Cullen  V.  Butler,  5  M.  &  Sel.  461  ;  Naylor  v.  Palmer,  22  L.  J. 
(Ex.)  329;  8  Exch.  739,  s.  c. ;  Jones  v.  Nicholson,  23  L.  J.  (Ex.)  330; 
10  Exch.  28,  s.  c.  ;  Lozano  v.  Janson,  28  L.  J.  (Q.  B.)  337. 


/  CONSTRUCTION.  502 

condition,  or  quality  soever,  barratry  of  the 
^master  and  mariners,  and  of  all  other  perils,  L  '  J 
losses,  and  misfortunes  that  have  or  shall  come  to  the 
hurt,  detriment,  or  damage  of  the  said  goods  and  mer- 
chandise and  ship,  &c.,  or  any  part  thereof."  The  facts 
of  the  case  were,  that  the  ship  and  goods  had  been  sunk 
at  sea  by  another  and  friendly  vessel  firing  upon  her, 
mistaking  her  for  an  enemy ;  and  the  question  was, 
whether  the  injury  was  within  the  general  words  with 
which  the  perils  enumerated  were  concluded.  The 
court  decided  that  the  assured  was  entitled  to  recover, 
as  the  loss  was  of  the  same  kind  as  the  perils  expressly 
mentioned,  and  was,  therefore,  within  the  general  terms. 
"If,"  said  Lord  Ellenborough,  in  delivering  the  judg- 
ment of  the  Court  of  King's  Bench,  "  it  be  a  loss  by 
perils  of  the  sea,  merely  because  it  is  a  loss  happening 
upon  the  sea,  as  has  been  contended,  all  the  other 
causes  of  loss  specified  in  the  policy  are,  upon  that 
ground,  equally  entitled  -so  to  be  considered ;  and  it 
would  be  unnecessary  ever  to  assign  any  other  cause  of 
loss  than  a  loss  by  perils  of  the  sea.  But,  as  that  has 
not  been  the  understanding  and  practice  on  the  subject 
hitherto,  and  inasmuch  as  the  very  insertion  of  the 
general  or  sweeping  words,  as  they  are  called,  in  the 
policy  after  the  special  words,  imports  that  the  special 
words  are  not  understood  to  include  all  perils  happen- 
ing on  the  sea,  but  that  some  more  general  words  were 
required  to  be  added,  in  order  to  extend  the  responsi- 
bility of  the  underwriters  *un equivocally  to  „ 
other  risks  not  included  within,  the  proper  •-  -^ 
scope  of  any  of  these  enumerated  perils,  I  shall  think 
it  necessary  only  to  advert  shortly  to  .  some  of  the 
reasons  upon  which  we  think  that  the  general  words, 
thus  inserted,  comprehend  a  loss  of  this  nature.    ,The 


504 


SMITHS    LAW   OF    CONTRACTS. 


extent  and  meaning  of  the  general  words  have  not  yet 
been  the  immediate  subject  of  any  judicial  construction 
in  our  courts  of  law.  As  they  must,  however,  -be  con- 
sidered as  introduced  into  the  policy  in  furtherance  of 
the  objects  of  marine  insurance,  and  may  have  the  effect 
of  extending  a  reasonable  indemnity  to  many  cases  not 
distinctly  covered  by  the  special  words,  they  are  en- 
titled to  be  considered  as  material  and  operative  words, 
and  to  have  the  due  effect  assigned  to  them  in  the  con- 
struction of  this  instrument ;  and  which  will  be  done 
by  allowing  them  to  comprehend  and  cover  other  cases 
of  marine  damage  of  the  like  kind  with  those  which 
are  specially  enumerated  and  occasioned  by  similar 
causes."  (i^) 

Another  very  clear  example  (:^)  of  the  same  rule  is 
afforded  by  a  case  where  a  ship  loaded  with  corn,  being 
forced  by  stress  of  weather  into  Elly  harbor,  in  Ireland, 
and  there  happening  to  be  a  great  scarcity  of  corn  there 
at  the  time,  the  people  came  on  board  the  ship  in  a 
tumultuous  manner,  *took  the  government  of 
her,  and  suffered  her  to  drive  on  rocks,  where 
she  was  stranded.  The  question  was,  whether  she  was 
detained  by  people  as  in  the  policy  above  mentioned. 
"  The  word  people,"  said  Mr.  Justice  BuUer,  "  in  the 
policy  means  the  supreme  power,  the  power  of  the 
country,  whatever  it  may  be.  This  appears  clear  from 
another  part  of  the  policy ;  for  when  the  underwriters 
insure  against  the  wrongful  acts  of  individuals,  they 
describe  them  by  the  names  of  pirates,  rovers,  thieves ; 
then,  having  stated  all  the  individual  persons  against 
whose  acts  they  engage,  they  mention  other  risks,  those 


[*505] 


{u)  Cullen  V.  Butler,  supra. 

{x)  Nesbitt  v.  Lushington,  4  T.  R.  783  ;  Glaholm  v.  Hays,  2  M.  &  Gr. 
(40  E.  C.  L.  R.)  257. 


CONSTRUCTION.  505 

occasioned  by  the  acts  of  kings,  princes,  and  people  of 
what  nation,  condition,  or  quality  soever.  These  words, 
therefore,  must  apply  to  nations  in  their  collective 
capacity."  They  did  not,  therefore,  include  a  mob  of 
rioters. 

It  is  obvious,  that,  if  the  whole  of  the  agreement  is 
to  be  considered,  the  place  where  it  was  made,(^)  the 
time  when,  the  objects  of  the  parties,  and  the  depart- 

.  ment  of  science  or  art,  trade  or  commerce,  to  which  the 
subject-matter  of  it  belongs,  must  be  regarded;  for, 
otherwise,  the  meaning  of  words  which  have  peculiar 
acceptations  at  different  times  and  places,  and  in  rela- 
tion to  different  subject-matters,  cannot  be  accurately 
understood.     But  bearing  in  mind  these  observations  as 

;  to  the  peculiar  ^meaning  which  words  some-  rti:-r\a-\ 
times  bear,  and  to  the   context  of  the  whole 

i   contract,  the  usual  and  proper  mode  of  understanding 

•  words  is  according  to  their  ordinary  sense  and  meaning. 
Of  this  mode,  the  case  of.  Barton  v.  Fitzgerald,  (^)  is  a 
strong  instance.  In  this  case  the  defendant,  by  deed 
reciting  a  lease  for  the  term  of  ten  years,  which  by  sev- 
eral assignments  had  come  to  him,  and  that  the  plaintiff 
had  contracted  for  the  absolute  purchase  of  the  pre- 
mises, assigned  them  to  the  plaintiff  for  the  residue  of 
the  term  in  as  ample  a  manner  as  he  held  the  same,  and 
covenanted  that  it  was  a  good  and  subsisting  lease,  valid 
in  law,  and  not  forfeited  or  otherwise  determined  or  be- 
come void  or  voidable.  The  foult  was,  that  the  original 
lease  was  for  ten  years  determinable  on  a  life  which  fell 
before  the  ten  years  expired,  but  after  this  assignment 
to  the  plaintiff.  And  the  court  held,  that  the  plain  and 
absolute  terms   of  the   covenant  must  have  their  full 

{>/)  See  Pust  V.  Dowie,  33  L.  J.  (Q.  B.)  172. 
(z)  15  East  530. 


506  smith's  law  of  contracts. 

meaning,  and  that  conser[uently  it  had  been  broken  by 
the  defendant;  although  there  was  another  coA'enant 
against  incumbrances  confined  to  such  as  were  created 
by  the  defendant,  and  those  who  might  claim  under 
him,  and  a  covenant  for  quiet  enjoyment  restrained  in 
the  same  manner,  (c^)  Another  instructive  instance  of 
the  rule  of  giving  to  each  word  its  ordinary  and  popular 
r^nf\^n  *meaning  as  evidently  affected  by  the  context 
or  circumstances  before  mentioned,  is  furnished 
by  the  case  of  Lord  Dormer  v.  Knight,  (^)  in  which  a 
deed  had  been  executed  by  the  defendant,  granting  an 
annuity  for  the  use  of  his  wife ;  provided  that,  if  she 
should  associate,  continue  to  keep  company  with,  or  co- 
habit, or  criminally  correspond  with  a  person  named, 
the  annuity  should  cease.  It  was  held  that  all  inter- 
course, however  innocent,  was  prohibited.  "  The  words 
of  the  deed,"  said  the  court,  "  are  as  general  as  can  be, 
and  go  much  further  than  the  exclusion  of  criminal  co- 
habitation. The  intention  was  to  put  a  stop  to  all  inter- 
course whatever  between  these  two  persons.  The  re- 
ceiving a  person's  visits  whenever  he  chooses  to  call,  is 
associating  with  him.  The  parties  have  chosen  to  express 
themselves  in  these  terms,  and  the  words  must  receive 
their  common  meaning  and  acceptation,"  In  like  man- 
ner, where  a  warrant  of  attorney  had  been  given  to  the 
plaintiff  by  the  defendant,  but  it  was  agreed  not  to  enter 
up  judgment  upon  it  unless  the.  defendant  should  dis- 
pose of  his  business  or  become  bankrupt  or  insolvent, 
it  was  held,  that  the  latter  words  meant  a  general 
inability  to  pay  his  debts,  and  not  merely  his  having 
recourse  to  the  protection  of  the  Insolvent  Courts,  (c) 

[a)  See  Worthington  v.  Warrington,  5  C.  B.  (57  E.  C.  L.  R.)  635. 

(6)  1  Taunt.  417. 

(c)  Biddlecombe  v.  Bond,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  332. 


CONSTRUCTION.  508 

But  a  very  little    consideration  will  show  that  the 

*rule  of  understandino;  the  words  and  sentences    r-:-rAo-i 

.  .     .  I'-oUbJ 

in  their  ordinary  meaning,  when  it  is  not  re-     ' 

strained  by  the  context,  is  perfectly  consistent  with  the 

rule  that  the  whole  context  is  to  be  considered ;  which 

is,  indeed,  the  just  rule  of  interpretation,  and  is  very 

conveniently  couched  in  the  ancient  maxim  of  the  law, 

Ex  antecedentihus  et   conseqiientihus  fit  oijiima   interyre- 

tatio.id) 

These  are  the    principal  rules   for  the  construction 

of  contracts.     There  are  others,  less  general,  which  are 

sometimes  referred  to.    They  will  be  found  very  clearly 

treated  of  in  Broom's   Maxims,  last  edition ;  and  both 

these  and  the  more  general  rules  which  it  has  been 

attempted  to  illustrate  in  this  volume,  are  explained  at 

large  in  Sheppard's  Touchstone ;  in  which  book,  indeed, 

many  of  the   topics  treated   of  in  these  Lectures  will 

be  found  explained  in  the  most  scientific  and  masterly 

manner. 

[d]  1  Shep.  Touch.  87;  Coles  v.  Hulme,  8  B.  &  C.  (15  E.  C.  L.  R.) 
568. 


INDEX. 


ABROAD, 

contract  made,  expounded  by  foreign  law,  327. 

but  if  sued  upon  here,  remedy  according  to  English  Law,  327, 
329. 
ACCEPTANCE, 

of  goods,  129.     See  Statute  of  Frauds,  Sec.  17. 

of  offer,  143,  145-150. 

offer  may  be  rescinded  until,  145. 
ACCOUNT, 

action  of,  450. 

infant  cannot  state  an,  295. 
ACCRUAL  OF  CAUSE  OF  ACTION,  454. 

what  is,  ih. 
ACKNOWLEDGMENT,  458,  459,  466-475.     See  Limitations, 

Statutes  op. 
ACTION, 

cannot  be   brought   for   fraudulent  representation,  unless  in 
writing,  105-109. 

forbearance  of,  when  a  consideration,  168-173. 

of  debt,  449. 

of  assumpsit,  450. 

of  covenant,  450. 

of  account,  450,  451. 

under  Judicature  Act,  449. 

barred  by  Statute  of  Limitations.     See  Limitations,  Stat- 
utes OF. 
ACTS  OF  PARLIAMENT, 

contracts  contravening,  objects  of,  221,  223. 
ADEQUACY  OF  CONSIDERATION,  161-165,  189,  208,  209. 

latter  must  be  of  some  value,  165. 
AD  IDEM, 

parties  must  consent,  in  order  to  make  a  contract,  133,  141- 
150. 
ADMINISTRATOR.     See  Executor. 


510 


INDEX. 


ADMISSION, 

part  payment  under  Statute  of  Limitations  may  be  proved  by, 
482. 
AGENT,  366-412.     See  Parties  to  Contracts,  ix. 

to  execute  deed  must  be  authorized  by  deed,  35. 

under  Statute  of  Frauds  must  not  be  the  other  party,  132. 
See  Statute  op  Frauds. 

remunerated  and  unremunerated,  175,  176, 

where  wife  binds  her  husband  as,  431—445. 

ratification  of  contract  by,  390-392. 

may  sign  acknowledgment  so  as  to  take  debt  out  of  Statute  of 
Limitations,  475. 
AGENCY, 

notice  of  determination  of,  392. 
AGREEMENT.     See  Statute  of  Frauds  ;  Contracts. 

word,  how  understood,  73. 

consideration  must  appear  in,  to  satisfy  Statute  of  Frauds, 
except  in  a  guaranty,  73-76. 

all   the   other   terms   must   appear   in,  to   satisfy  Statute  of 
Frauds,  76. 

need  not  be  in  one  writing,  but  may  be  in  several,  79,  132, 133. 

nor  can  they  be  joined  by  verbal  evidence,  83,  84. 

signature  to  agreement  must  be  that  of  party  to  be  charged, 
85,  88,  132. 

no  matter  where  signature  placed  if  intended  to  bind,  86. 

to  satisfy  Statute  of  Frauds  must  exist  before  action,  89. 

if  unwritten  not  void  under  4th  sec.  of  Statute  of  Frauds,  but 
no  action  can  be  brought  upon  it,  90. 

made  in  consideration  of  marriage,  109-111. 

for  an  interest  in  lands,  73, 111-121. 

for  lease  not  to  be  performed  within  a  year,  120. 
ALIENS,  327-331.     See  Parties  to  Contracts,  v. 
ALIEN  ENEMIES,  220,  330.     See  Parties  to  Contracts,  v. 
AMBIGUITY, 

patent  and  latent,  45. 
APOTHECARIES'  ACT. 

contract  to  evade,  222. 
ASSENT, 

of  both  parties  necessary  to  a  contract,  141,  142. 

must  be  to  same  thing,  141-150. 

must  be  to  precise  terms  ofiered,  143-150. 


INDEX.  511 

ASSIGNABLE, 

covenants  between  landlord  and  tenant  running  with  the  land, 
30. 
ASSIGNABLE  CONTRACTS,  30,  269. 
ASSIGNMENT  OF  CHATTEL  INTERESTS, 

must  be  by  deed,  when,  35. 
ASSUMPSIT, 

action  of,  450. 
ATTORNEY, 

authorized  under  seal  of  registered  company  may  execute  deed 
under  his  own,  362. 
BARON  AND  FEME,  304,  n.  (0-     See  Husband;  Wife;  Par- 
ties TO  Contracts,  ii,  ix,  (e). 
BARGAIN  AND  SALE, 

deed  of,  requires  pecuniary  consideration,  16. 

the  word  "  bargain"  in  the  17th  sec.  of  Statute  of  Frauds,  135. 

there  cannot  be  a  bargain  without  two  parties,  ib. 
BENEFICES, 

illegal  charges  on,  266. 
BETTING,  242-247. 
BEYOND  SEAS,  457,  461,  463,  464,  466.      See  Limitations, 

Statutes  of. 
BILLS  OF  EXCHANGE, 

consideration  presumed,  166,  167. 

given  for  illegal  consideration,  270-272. 

infant  cannot  bind  himself  by,  294. 

given  to  wife  dum  sola,  306. 

power  of  corporations  to  accept,  336,  337. 

liability  of  Joint-Stock  Companies  for,  351-355. 

under  Companies'  Act,  1862,  362,  363. 

liability  of  firm  upon  bills  drawn  by  partner,  423. 
BROCAGE.     See  Marriage. 
BROKER,  424-428. 

insurance,  426-428. 
(WUSE  OF  ACTION, 

accruing  of,  454-457. 
CHAMPERTY  AND  MAINTENANCE,  218-220. 
CHATTEL  INTERESTS, 

assignment  of,  when  to  be  by  deed,  34. 
CHILDREN, 

liability  of  parent  for  goods  supplied  to,  184,  185. 


512  INDEX. 

CHOSE  IN  ACTION, 

not  assignable  at  common  law,  30,  269. 

liow  far  assignable  under  Judicature  Act,  269,  n.  (J). 

of  wife,  306,  312-316. 

reduction  into  possession  of,  by  husband,  306,  313-316. 
CLAIM, 

forbearance  of,  a  consideration,  168. 

if  doubtful  or  unfounded,  171. 
COHABITATION,  ILLICIT, 

if  future  an  illegal  consideration,  195. 
if  past  no  consideration,  16,  195. 
COMMON  LAW, 

practice  of  English  courts  at,  1. 
contracts  divided  by,  into  three  classes,  2. 
contracts  by  way  of  gaming  or  wagering  not  unlawful  at,  245. 
COMMON  SEAL, 

corporation  must  contract  under,  383. 

except  in  certain  cases,  334-340. 
COMPANIES,  342-366.     See  Parties  to  Contracts,  viii. 
CONDITION,     , 

freehold  cannot  be  granted  without  deed  upon,  33,  34. 
chattel  real  or  personal  may,  at  common  law,  34. 
CONDITIONAL  DELIVERY, 

of  a  deed  to  a  third  person,  10. 
CONSENT, 

to  the  same  thing  necessary  to  a  contract,  141. 
CONSIDERATION, 

not  essential  to  contract  by  deed,  13,  150,  153. 

except  under  Statute  of  Uses,  or  in  restraint  of  trade,  16. 
implied  in  deed,  13,  150. 

not  in  simple  contract,  13,  95,  150. 
reason  of  requiring  a  consideration  in  simple  contract,  153,  154. 
of  difference  in  respect  of,  between  contract  by  deed 
and  simple  contract,  13,  14,  153. 
covenant  to  stand  seised,  void  without,  16. 
where  several  and  one  illegal,  it  avoids  whole  instrument,  19. 
secus  where   consideration   good  and  several  covenants,  some 

legal  and  some  illegal,  ib. 
essential  to  existence  of  simple  contract,  152. 
must  appear  in  memorandum   under  4th  Sec.  of  Statute  of 
Frauds,  73-76. 


INDEX.  513 

CONSIDERATION— co?(^m«ef?. 

expressly  or  by  implication,  76. 
except  in  the  case  of  a  guaranty,  73,  75,  105. 
new  consideration  of  guaranty  does  not  do  away  with  necessity 

of  writing,  101,  102. 
of  marriage,  110. 

maxim  of  nudum  jiffctian,  93,  152. 
I'feason  of  the  rule,  153. 
what  is,  155. 

benefit  to  promisor,  or  disadvantage  to  promisee,  155-161. 
must  move  from  promisee,  160. 

in  absence  of  fraud,  inadequacy  of,  no  ground  for  avoiding  con- 
tract, 161-165,  208,  209. 
must  be  of  some  value,  165. 
bills  and  notes  always  presumed  to  be  for  a,  167. 
forbearance  a,  168. 

of  doubtful  claim,  171. 
trust  a,  174. 
immoral,  193-196. 
securities  for  a  gaming,  271,  272. 
See  Simple  Contracts. 
CONSTRUCTION,  RULES  OF,  483-508. 
not  merely  conventional,  483. 
of  written  contracts  to  be  made  by  the  judge,  484. 
of  terms  of  trade,  place,  &c.,  by  the  jury,  486. 
similar,  of  deeds  and  simple  contracts,  487. 

in  whatever  court  to  be  construed,  ib. 
rule  of,  that  whole  of  document  be  considered,  ib. 
Monypeuny  v.  Monypenny,  488. 
Piggott  V.  Stratton,  496. 

as  to  words  ejusdem  gejieris,  255,  256,  502-505. 
that  circumstances  be  considered,  505. 
that  words  be  understood  in  ordinary  sense,  506.  507. 
CONTRACTING  PARTY, 

no  action  can  be  brought  to  charge,  where  Statute  of  Frauds 
not  complied  with,  89,  90. 
CONTRACTS,  1. 

classification  of,  2. 

in  all,  parties  must  assent  ad  idem,   141. 

three  classes  of,  2. 

of  record,  3. 


514  INDEX. 

CONTRACTS— co7itmued. 

incidents  of,  4. 

by  deed,  5.     See  Deed. 

without' deed,  5.     See  also  Simple  Contracts. 

illegal  at  Common  Law,  18,  193-228.     See  Illj:gal  Con- 
tracts. 

illegal  by  statute,  17,  18,  193,  228-269.     See  Statute,  Con- 
tracts illegal  by. 

in  restraint  of  trade.     See  Restraint  op  Trade. 

how    affected    by   Statute   of    Frauds.       See    Statute    of 
Frauds. 

where  contract  made  available  without   bringing  action  on  it, 
90. 

in  consideration  of  marriage,  109—111. 

for  the  sale  of  lands,  111-121. 

for  sale  of  growing  crop  of  mowing  grass,  112. 
t  for  sale  of  timber,  115. 

not  to  be  performed  within  a  year,  121-126. 

for  the  sale  of  goods  of  ten  pounds  and  upwards,  128-136. 

in  what  case  good  under  Statute  of  Frauds.  Sec.  17,  ib. 

Statute  of  Frauds  does  not  preclude  a  contract  being  rescinded 
by  parol,  13T. 

in  absence  of  fraud,  inadequacy  of  consideration  no  ground  for 
avoiding,  162. 

illegal,  191-280.     See  Illegal  Contracts. 

of  worldly  business  on  the  Lord's  day,  253-258. 

parties  to,  281-445.     See  Parties  to  Contracts. 

made  abroad,  expounded  by  foreign  law,  327-329. 

but  if  sued  upon  here  remedy  according  to  Eng- 
lish law,  3-7-329. 
CORPORATION    AGGREQATE,    332-366.     See    Parties    to 
Contracts,  vii,  viii. 

contracts  under  common  seal,  333. 

exceptions  to  rule,  333-342,  360,  361, 
COURT, 

to  construe  document  when  meaning  of  words  ascertained,  67, 
484. 
COVENANT, 

to  stand  seised,  void   without  consideration  of  blood  or  mar- 
riage, 16. 

legal  and  illegal,  19. 


INDEX.  515 

COVENANT— co»^mztefZ. 
when  assignable,  30. 
when  promise  made  by  deed,  performance  may  be  enforced  by 

action  of,  35. 
action  of,  450. 

must   be   brought  within   twenty  years  after  cause  of 
action  accrued,  36,  454,  457. 
no  particular  technical  words  necessary  to  make,  494. 
CREDIT, 

Cjuestion  whether  given  to  agent  or  principal,  401,  402. 
question  whether  given  to  one  partner  or  to  ^rui,  415-420. 
CREDITORS, 

specialty,  have  priority  in  administration  of  personal  eflPects,  32. 
4  simple  contract,  have  remedy  against  real  estate  of  deceased  in 

equity,  32. 
where  debtor  taken  in  execution   discharged  by  consent   of, 
debt  formerly  satisfied,  99. 
CROPS  GROWING, 

contract  for,  112. 
CUSTOM.     See  Usage. 

written  contracts  may  be  qualified  by,  51. 

parol  evidence  admissible  to  annex,  to  certain  written  contracts, 

when,  i6.,  52. 
does  not  apply  to  unusual  contracts,  67. 
CUSTOMARY  INCIDENTS, 

may  be  annexed  by  parol  to  written  contracts,  51. 
DEBT, 

promise  to  answer  for,  of  another,  must  be  in  writing,  73,  95. 

See  Guaranty. 
person  whose  debt  is  guaranteed  how  far  must  be  himself  liable, 

96-99,  100,  101. 
action  of,  36,  449. 
DEED, 

contracts  by,  5. 

what,  ih. 

must  be  written  on  paper  or  parchment,  ih. 

though  written,  need  not  be  signed,  ih. 

must  be  sealed  and  delivered,  6. 

this  a  main  distinction  between  a  deed  and  any  other 
contract,  ib. 
delivery  of,  ih. 
34 


^    516  INDEX. 

DEED — continued. 

to  whom  to  be  delivered,  7. 

escrow,  8. 

conditional  delivery,  8,  10, 

peculiarities  of,  13,  20,  27,  29,  30,  31. 

poll,  12. 

indented,  or  indenture,  ih. 

does  not  require  consideration,  13. 

reason  of  this  rule,  14. 
under  Statute  of  Uses  void  without  consideration,  16. 
contracts  by,  in  restraint  of  trade,  17. 
illegality  of  consideration  of,  may  be  shown,  ih. 
covenants  in,  some  legal,  some  not  legal,  good,  19. 
estoppel  by,  20.  » 

of  no  effect  except  upon  matters,  etc.,  founded  upon 

the  deed,  22. 
of  no  effect  if  facts  appear  by  the  deed,  ih. 
merger  by,  27. 

contract  merged  must  be  ad  idem,  28. 
cannot  be  got  rid  of  by  parol,  29. 
covenant  in,  when  assignable,  30. 
charges  heir  and  devisee  of  party  bound  by,  31. 
creditors  by,  have  priority,  32. 
when  necessary,  32. 

to  pass  incorporeal  property,  ih. 

a  freehold  estate  upon  condition,*  34. 
to  assign  a  patent,  35. 
to  transfer  a  registered  ship,  ih. 
to  authorize  agent  to  execute  a  deed,  35. 
to  grant  by  corporation,  35. 
to  render  gift  of  chattel  irrevocable,  34. 
to  feoffments,  partitions,  exchanges,  leases,  as- 
signments, and  surrenders,  ih. 
remedies  on  contracts  by,  35,  449,  450. 

difference  between  contracts  by,  ,and  simple  contracts,  13-16, 
20,  27,  29-32,  36,  38. 
DEFAULT, 

of  another,  pro'mise  to  answer  for,  must  be  in  writing,  73,  95. 
See  Guaranty. 
,     DEL  CREDERE,  102,  103. 


INDEX.  517 

DELIVERY, 

requisite  to  a  deed,  5. 

of  deed  by  words  without  touch,  6. 

or  by  touch,  without  words,  ih. 

to  whom  requisite,  7. 

as  an  escrow,  8. 

to  a  third  person,  ih. 

express  words  not  necessary  to  constitute  escrow,  10. 

conditional  must  be  to  third  person,  ih. 
DEMISE  OF  LAND, 

for  more  than  three  years,  must  be  in  writing,  34,  119,  120. 
DEVISEE, 

bound  by  covenant  which  binds  devisor,  31,  32. 

yet  simple  contract  creditors  have  remedy  against  real  estate  in 
equity,  32. 
DIRECTORS, 

provisional,  of  proposed  company,  liability  of,  384. 
DISTANCE, 

how  to  be  measured,  in  covenant  in  limited  restraint  of  trade, 
207. 
DOCUMENTS, 

several  may  be  read  together,  under  Sec.  4  of  Statute  of  Frauds, 

79,  83. 
under  Sec.  17, 132. 

See  Statute  op  Frauds. 
DORMANT  PARTNER,  420,  422. 
DOUBTFUL  CLAIM, 

forbearance  of,  a  consideration,  171. 
DRUNKEN  PERSON, 

contracts  of,  325-327.     See  Parties  to  Contracts,  iv. 
DURESS, 

vitiates  deed,  17. 
DUTIES,  PUBLIC, 

contracts  inconsistent  with,  217. 
See  Public  Policy. 
EARNEST, 

giving  of,  113,  128,  129.    See  Statute  op  Frauds,  Sec.  17. 
EJUSDEM  GENERIS, 

rule  for  construing  words,  in  statutes,  255,  256. 

contracts,  502-505. 


518  INDEX. 

ELECTION, 

of  third  party  to  charge  principal  or  agent,  400-411. 
when  once  made  binding,  402. 
right  of,  how  qualified,  403,  405-411. 
EMBLEMENTS,  114. 
ENEMIES,  ALIEN, 

contracts   with,   220,   221,    330.      See  Parties   to   Con- 
tracts, V. 
ESCROW, 

distinction  between  a  deed  and,  8. 
definition  of,  ib. 

conditional  delivery  of,  to  third  person,  10. 
to  constitute,  delivery  as  such  in  express  words,  not  essential, 
11. 
ESTOPPEL, 

meaning  of,  20. 
created  by  deed,  ib. 
principle  of,  21. 

allegation  to  operate  as,  must  be  definite,  21. 
has  no  effect  on  matters  not  depending  on  the  contract  con- 
tained in  the  deed,  22. 

nor  if  the  facts  appear  by  the  deed,  ih. 
binds  both  parties  to  fact  agreed  upon  by  both,  23. 
by  matter  of  record,  25. 

in  pais,  25,  26,  27. 
^^EVIDENCE.     .S^ee  Parol. 

of  contracts  of  record,  4. 
of  written  contracts,  39-69. 
EXCHANGES  OF  LAND, 

must  now  be  by  deed,  34. 
EXECUTED  and  EXECUTORY  CONSIDERATIONS,  178-180. 
EXECUTOR  or  ADMINISTRATOR, 

contract  to  bind  must  be  in  writing,  when,  72,  92-95. 
consideration  requisite  for,  73,  93-95. 
FACTOR,  424,  428-431.     See  Parties  to  Contracts,  ix.  {d). 
FELON,  331,  332.     See  Parties  to  Contracts,  vi. 
FEOFFMENTS, 

must  now  be  by  deed,  34. 
FIXTURES, 

contracts  for,  116. 


INDEX.    /  519 

FORBEAKANCE, 

a  consideration,  168. 

of  doubtful  or  unfounded  claim,  when,  171,  172. 
FOREIGNER.     See  Alien. 
FOREIGN  LAW, 

contract  made  abroad  expounded  by,  327-329. 

but  if  sued  upon  here,  remedy  according  to  English, 
law,  327,  329. 
FRAUD  or  DECEIT, 

contracts  .tainted  with,  vitiated,  17,  225-228. 

may  be  either  active  or  passive,  226. 
FRAUDS,  STATUTE  OF.     See  Statute  op  Frauds. 
FRAUDULENT  CONTRACT, 

of  partner,  423. 
FRAUDULENT  MISREPRESENTATIONS, 

cannot  be  sued  upon  unless  in  writing,  105-108. 
FRUCTUS  INDUSTRIALES,  114. 
GAMBLING,  238-248. 
GAMES, 

wagers  on,  238-248. 

bets  not  on,  within  the  statute,  245,  246. 
GAMING, 

contracts  by  way  of  not  unlawful  at  common  law,  245. 
void  by  statute,  244-246. 

securities  for  a  gaming  consideration,  271,  272. 
GIFT, 

of  chattel  to  be  irrevocable,  must  be  by  deed,  34. 
GOODS, 

contract  for  sale  of,  how  affected  by  Statute  of  Frauds,  128- 
132.     See  Statute  op  Frauds,  Sec.  17. 
GRASS-GROWING, 

contract  for  sale  of,  112. 
GROWING  CROP, 

contract  for  sale  of,  112. 
GUARANTY,  72,  73,  75,  95-109. 

must  be  in  writing,  72,  73,  95. 

person  whose  debt  guaranteed,  how  fiir  must  continue  himself 
liable,  96,  100,  101. 

new  consideration  of,  does  not  dispense  with  w'riting,  101, 102. 

for  default  or  miscarriage  in  breach  of  any  duty,  must  be  in 
writing,  103. 


520  INDEX. 

GUARANTY— continued. 

undertaking  to  sell  del  credere  not  a,  within  Statute  of  Frauds, 

102,  103. 
the  promise  to,  must  be  made  to  the  creditor,  103. 
promise  made  to  debtor  to  pay  his  debt,  not  a,  within  the 

meaning  of  the  statute,  104. 
consideration  of,  need  not  be  in  writing,  73,  75,  105. 
HEIK, 

bound  by  ancestor's  deed  if  named  therein,  31. 
HORSE  RACES,  239-242,  244. 
HUSBAND, 

may  sue  on  contract  of  wife,  304,  306. 
but  must  during  the  marriage  join  her  as  co-plaintiff,  306. 
bound  by  contract  of  wife  on  ground  of  agency,  431—445. 
lunatic,  liable  for  necessaries  supplied  to  wife,  324,  439.     ^See 
also  Parties  to  Contracts,  ii,  ix  (e). 
ILLEGAL  ACTS, 

indemnification  against,  217,  218. 
ILLEGAL  CHARGES, 
on  benefices,  266. 
ILLEGAL  CONSIDERATIONS, 

bills  and  notes  given  for,  270-272. 
ILLEGAL  CONTRACTS,  17,  191-280. 
at  common  law,  17,  193-228. 

by  statute,  17,  228-269.     See  Statute,  Contracts  Ille- 
gal BY. 
promise  to  do  legal  and  illegal  things  void  as  to  latter,  19,  193. 
immoral,  17,  193-196.     See  Immoral  Contracts. 
opposed  to  public  policy,  196-225.     See  Public  Policy. 
tainted  with  fraud,  17,  225-228. 
money  paid  on,  cannot  be  recovered  back,  272-274. 

unless  the  contract  be  made  illegal  to  pro- 
tect the  party  paying,  274. 
and  except  when   paid  to  a  stakeholder, 
278,  279.  . 
ILLEGAL  COVENANTS,  19. 
ILLEGALITY, 

is  a  breach  of  common  or  statute  law,  17,  193. 
equally  such  whether  act  forbidden  directly  or  by  implication, 

17,  228. 
as  where  a  penalty  is  imposed,  229. 


INDEX.  521 

ILLEGALITY— coH/mwefZ. 

of  consideration  vitiates  deed,  17,  192. 

or  simple  contract,  ib. 

incidental  merely  to  contract  does  not  avoid  it,  234-236. 

possible,  how  far  contract  avoided  by,  236. 
ILLEGAL  MEASURES,  267. 
ILLICIT  COHABITATION, 

if  future,  illegal  consideration,  195. 

if  past,  no  consideration,  16,  195. 
IMxMORAL 

consideration  vitiates  deed,  17,  192. 
IMMORAL  CONTRACTS,  193-196. 

no  action  lies  on,  193,  194. 

libellous  publication,  ih. 

publisher  of,  cannot  sue  for  pirating,  194. 

letting  rooms  for  blasphemous  lectures,  195. 

illicit  cohabitation,  if  future,  illegal,  ib. 

if  past,  no  consideration,  16,  195. 

to  supply  prostitute  with  lodgings,  &c.,  195,  196. 
INADEQUACY  OF  CONSIDERATION,  161-165,  208,  209. 
INCORPOREAL  PROPERTY, 

deed  necessary  to  transfer,  32. 
INCIDENTS, 

of  contracts  of  record,  4. 

illegal,  do  not  necessarily  vitiate  contract,  234. 
INDEMNIFICATION, 

against  illegal  acts,  217. 
INDENTURE,  12. 
INDICTMENT, 

compromise  of,  215,  216. 
INFANT,  282-303,  457,  461.     See  Parties  to  Contracts,  i.; 
Limitations,  Statutes  of. 

contracts  of,  can  be  ratified  by  writing  only,  138-140,  302. 

must  be  signed  by  himself,  and  not  by  agent,  140. 

may  contract  for  necessaries,  283. 
INSANE  PERSON,  318-325,  457,  461.     See  Parties  to  Con- 
tracts, III. )  Limitations,  Statutes  of. 
INSURANCE, 

contracts  of,  must  be  written  or  printed,  140'. 

wager  policies,  248-252. 
INSURANCE  BROKER,  426-428. 


622 


INDEX. 


INTEREST, 

what  is  an,  concerning  lands,  111-121. 

shares  in  joint  stock  companies  seised  of  land,  not,  129,  348. 
INTENTION 

to  break  the  law,  when  necessary  to  be  shown,  in  order  to  avoid 
contract,  236. 
INTOXICATED  PERSON, 

contracts  of,  329.     See  Parties  to  Contracts,  iv. 
voidable  not  void,  331. 
JOINT  DEBTOR,  465,  466.     See  Limitations,  Statutes  of. 
JOINT  STOCK  COMPANIES,  342-366.     See  Parties  to  Con- 
tracts, VIII. 
JUDGMENT, 

remedy  on,  449,  453. 

execution  on,  times  of  issuing,  453. 

how  revived,  ih. 

arrested  or  reversed,  460.     See  Limitations,  Statutes  of. 
JURISDICTION, 

common  law,  1. 

criminal,  ib. 

real  property,  ih. 

fiscal,  ih. 
JUSTICE, 

contract  obstructing  course  of,  213-215. 
LAND, 

contract  for  sale  of,  must  be  in  writing,  72, 73,- 111-121.     See 
•  Statute  of  Frauds. 
LANDLORD  AND  TENANT, 

parol  evidence  admissible  to  annex  customary  incidents  to  con- 
tracts between,  52. 
LATENT  AMBIGUITY,  46. 

may  be  explained  by  verbal  evidence,  45,  46. 
LEASE, 

of  land  for  more  than  three  years  from  the  making,  must  be 
by  deed,  34,  35,  71. 

agreement  for,  120. 
LEGAL  COVENANTS,  21. 
LETTER, 

offer  and  acceptance  by,  148-150, 
LIBELLOUS  WORK, 

price  of,  cannot  be  recovered,  193. 


INDEX.  523 

LIBELLOUS  WORK— con/mifecZ. 

nor  can  publisher  sue  for  pirating,  194. 

nor  will  equity  restrain  pirating,  ih. 

nor  contract  to  publish,  be  enforced,  ih. 
LIMITATIONS,  STATUTES  OF,  451-483. 

policy  of,  451,  452. 

scire  facias  on  a  recognizance  must  be  sued  within  20  years, 
453. 

after  judgment,  if  parties  live,  execution  may  issue  in  6  years. 
453. 

afterwards,  must  be  revived  by  writ  of  revivor,  ih. 

if  judgment  less  than  10  years  old,  no  rule  or  order  neces- 
sary, ih. 

if  more  than  10  years  old,  rule  or  order  necessary,  ih. 

if  more  than  15  years  old,  rule  to  show  cause,  ih. 

debt  or  covenant  upon  any  specialty  must  be  brought  within  20 
years  after  the  cause  of  action  accrued,  36,  454,  457. 

scire  facias  upon  recognizance  within  20  years  after  the  cause 
of  action  accrued,  453. 

when  time  of  limitation  begins  to  run,  454-457. 

what  is  the  accruing  of  the  cause  of  action,  455-457. 

infant,  married  woman,  or  insane  person  may  sue  upon  spe- 
cialties within  20  years  "from  the  removal  of  their  disability, 
457. 

if  defendant  be  beyond  seas  when  cause  of  action  accrues,  he 
may  be  sued  within  20  years  from  his  return,  457. 

if  acknowledgment  be  given  in  writing  signed  by  tlfe  party 
liable,  or  his  agent,  he  may  be  sued  within  20  years  from 
the  date  of  that  acknowledgment,  458. 

what  is  such  acknowledgment,  458,  459. 

if  part  payment  of  principal  or  interest,  defendant  may  be  sued 
within  20  years  from  such  payment,  4G0. 

if  action  brought  and  defendant  outlawed,  new  action  may  be 
brought  within  a  year  after  reversal  of  outlawry,  ih. 

if  judgment  arrested  or  reversed  by  writ  of  error,  new  action 
may  be  brought  within  a  year  after  reversal  of  the  judg- 
ment, ih. 

Assumpsit  or  debt  on  simple  contract  must  be  commenced 
within  6  years  after  cause  of  action  accrued,  460,  461. 

infant,  married  women,  or  insane  'person  must  sue  within  6 
years  from  the  removal  of  their  disability,  461. 


524  INDEX. 

LIMITATIONS,  STATUTES  0¥— continued. 

if  defendant  outlawed,  or  judgment  arrested  or  reversed,  a  new 
action  may  be  brought  within  a  year  after  reversal  of  the 
outlawry  of  the  judgment,  462. 

if  defendant  be  beyond  seas,  plaintiff  has  six  years  after  his  re- 
turn to  sue,  463. 

meaning  of  "beyond  seas"  different  in  4  Anne,  c.  16,  s.  19, 
and  in  3  &  4  Will.  4,  c.  42,  s.  7,  ib. 

but  now  those  words  have  the  same  meaning  in  both  statutes 
by  19  &  20  Vict.  c.  97,  s.  12,  464. 

joint  debtor  not  beyond  seas  may  be  sued  alone,  and  must  be 
sued  within  the  period  of  limitation,  465. 

but  joint  debtor  beyond  seas  may  be  sued  within  the  period  of 
limitation  from  his  return,  although  judgment  has  been  ob- 
tained against  the  former,  466. 

if  defendant  have  given  an  acknowledgment  by  writing  signed, 
statute  suspended,  466. 

acknowledgment  must  contain  or  imply  an  unconditional  pro- 
mise to  pay,  467,  468. 

constitutes  new  cause  of  action,  468. 

must  be  promise,  or  acknowledgment  implying  one,  to  bar  sta- 
tute, 469. 

conditional  promises,  469.' 

conditional  ability,  471. 

senihle  letter  without  prejudice  cannot  be  an  acknowledgment 
to  bar,  473. 

Vhen  condition  performed  action  may  be  brought,  ib. 

precise  sum  need  not  be  named,  474. 

sufficiency  of  acknowledgment,  question  for  judge,  475. 

promise  must  be  before  action,  ib. 

acknowledgment  by  agent,  ib. 

part  payment  of  principal  or  interest  takes  case  out  of  the  sta- 
tute, 476. 

but  part  payment  by  one  joint  debtor  does  not  affect  liability 
of  other,  ib. 

part  payment  may  be  made  by  bill,  477. 

statement  of  a  mutual  settlement  of  account  equivalent  to  pay- 
ment, 478,  479. 

but  part  payment  must  be  on  account  of  a  greater  sum,  481. 

part  payment  may  be  proved  by  admission,  482. 

merchants'  accounts  now  within  the  statute,  483. 


INDEX.  525 

LOAN, 

when  joint-stock  companies  liable  for,  355. 
LOCAL  TEEMS,  60. 
LODGINGS, 

contracts  for,  116,  117. 
LONDON, 

married  woman  may  sue  by  custom  of,  310. 
LORD'S  DAY, 

contracts  of  worldly  business  on,  253-258. 
LUNATIC,  318-325,  457,  461.     See  Parties  to  Contracts,  hi.  ; 

Limitations,  Statutes  op. 
MAINTENANCE  and  CHAMPERTY,  218-220. 
MANDAMUS,  WRIT  OF, 

how  far  a  remedy  to  enforce  contract,  446-448. 
MARRIAGE, 

agreements  in  consideration  of,  72,  73,  109-111. 

contracts  in  restraint  of,  210. 

tending  to  separation,  ih. 

brocage  contracts,  212. 
MARRIED  WOMEN,  304-317,  431-445, 457,  461.     See  Parties 

TO  Contracts,  II.,  ix.  (e);  Limitations,  Statutes  op. 
MEANING, 

words  to  be  understood  in  ordinary,  506,  507. 
MEMBERS  OF  JOINT  STOCK  COMPANIES, 

liability  of,  349,  364,  365. 
MERCHANTS'  ACCOUNTS, 

formerly  excepted  from  Statute  of  Limitations,  460,  482. 

this  exception  abrogated,  483. 
MERGER, 

where  same  engagement  made  first  by  simple  contract  and 
afterwards  by  deed  between  the  same  parties,  27. 

the  two  contracts  must  be  identical,  28. 
MISCARRIAGE, 

of  another,  promise  to  answer  for,  72,  73,  95,  96,  102,  103. 
See  Guaranty. 
MISDEMEANOR, 

when  indictments  for,  may  be  compromised,  215,  216. 
MISREPRESENTATION,  FRAUDULENT, 

cannot  be  sued  upon  unless  in  writing,  106. 

what,  sufficient  to  avoid  contract,  227. 


526  INDEX. 

MONEY, 

borrowing,  when  joint-stock  company  liable  for,  355. 
MORAL  CONSIDERATION,  187. 
MUTUALITY, 

necessary  to  make  contract,  142. 
NECESSARIES, 

infant  may  contract  for,  288. 

what  are,  for  infant,  283-293. 

wife  may  contract  for,  434-445.  See  Parties  to  Contracts, 
IX.   (e). 
NOMINAL  PARTNER,  421. 
NON  COMPOS, 

contract  of  one,  318.     See  Parties  to  Contracts,  hi. 
NOTICE, 

of  determination  of  agency,  392,  393. 

of  retirement  of  partner,  421. 

of  dissolution  of  partnership,  422. 
NUDUM  PACTUM,  93,  152. 
OBJECTS  OF  ACTS  OF  PARLIAMENT, 

contracts  contravening,  221,  222. 
OBJECTS  OF  JOINT-STOCK  COMPANIES, 

to  be  adhered  to,  358-360. 
OBLIGATION, 

by  record  may  be  discharged  by  release,  4.. 
OBSTRUCTING  COURSE  OF  JUSTICE, 

contracts,  213-217. 
OFFER, 

may  be  rescinded  till  acceptance,  145. 

by  letter,  148. 
ORDER, 

of  judge  for  execution  on  judgment,  453. 
OUTLAW,  331,  332,  460,  462.     See  Parties  to  Contracts,  yi., 

Limitations,  Statutes  op. 
PAPER  or  PARCHMENT, 

deed  must  be  written  on,  5. 
PAROL, 

deed  cannot  be  got  rid  of  by,  29. 

written  contracts  cannot  be  varied  by,  41. 

but  may  be  varied  by  parol  subsequently,  43. 
except  where  law  requires  a  writing,  45. 


INDEX.  527 

PA  ROL — continued. 

patent  ambiguity  cannot  be  explained  by,  45. 
,  but  latent  ambiguity  may,  45,  46,  47,  49. 

admissible  to  annex  customary  incidents  to  certain  written  con- 

.tracts,  51,  55. 
technical  terms  explained  by,  60,  61. 
cannot  be  given  to  explain  meaning  of  words  "  more  or  less," 

in  a  mercantile  contract,  &Q. 
demise  of  land,  if  for  not  more  than  three  years,  good  under 

Statute  of  Frauds,  71. 
agreement  for  such  demise,  not,  120. 
acceptance  of  proposal  in  writing,  89. 
PARTIES  TO  CONTRACTS,  281-445. 
personal  inability  to  contract,  282. 

I.  infant,  282-303. 

riiay  contract  for  necessaries,  283. 

what  are  necessaries,  283-293. 

expenses  of  marriage  settlement,  293. 
cannot  trade,  293. 
or  bind  himself  by  bill,  294. 
or  state  an  account,  295. 
or  make  himself  liable  to  penalty,  296. 
reason  why  cannot  trade,  297. 
cannot  be  sued  on  contract,  298. 
contract  by,  not  void,  but  may  be  confirmed,  298-302. 
on  full  age  may  repudiate  or  confirm,  298. 
contract  of,  as  to  leasing  land,  300. 

as  to  shares,  300-302.- 
ratification,  on  full  age,  of  contract  made  during  infancy, 

must  be  by  writing,  138-140,  302. 
persons  who  contract  with  infants  bound,  303, 

II.  married  women,  304-317. 

contracts  by,  before  marriage,  at  common  law,  304-307. 
benefit  of  and  liability  to,  vest  in  husband,  304. 

but  revive  if  wife  survive  husband,  305. 
husband  must  be  joined  with  wife  in  actions  upon, 
306. 

except  in  the  case  of  bill  or  note  given  to  her 
dum  sola,  ih. 
before  marriage,  under  Married  Women's  Property 
Act,  1870,307. 


52  &  INDEX. 

PARTIES  TO  CONTRACTS— coH^mwecZ. 
II.  married  women — continued. 

during  marriage,  at  common  law,  307-316. 
in  general  not  binding,  308,  309. 

but  husband  may  avail  himself  of  them,  311- 
314. 
exceptions,  where  husband  civilly  dead,  309,  310. 
by  custom  of  London,  310. 
in  case  of  judicial  separation,  310,  311. 
choses  in  action  of,  306,  312-316. 

reduction  into  possession  of,  by  husband,  306,  313- 
316. 
contracts  by,  during  marriage,  under  Married  Women's 

Property  Act,  1870,  316,  317. 
may  sue  alone,  under  Married  Women's  Property  Act, 
1870,  when,  307,  317. 

III.  insane  persons,  318-325. 

fair  contracts  with  lunatic  executed,  valid,  322-324. 

if  executory  not,  sed  qusere,  325. 

liability  of,  for  necessaries  furnished  to  wife,  324,  439. 

IV.  intoxicated  persons,  contracts  by,  325-327. 

voidable,  not  absolutely  void,  327. 
V.  aliens,  220,  221,  327-331, 
friends,  327. 

if  contract  by,  made  in  England,  expounded  by  law 

of  England,  ih. 
if  made  abroad,  by  foreign  law,  327-329. 
but  if  sued  on  here,  remedy  according  to  English 

law,  327,  329. 
may  acquire  real  and  personal  property  here,  331. 
enemies,  220,  221,  330. 

contracts  with,  void,  ih. 
VI.  outlaws  and  felons,  331. 

at  common  law,  liable  on  their  contracts,  but  cannot  take 

advantage  of  them,  ib.     . 
modification  of  disabilities  of  felons,  by  recent  statute, 
331,  332. 
VII.  corporation,  aggregate,  332-342. 

general  rule,  contracts  by  common  seal  only,  332. 
unless  where  convenience,  almost  amounting  to  necessity, 
requires  an  exception,  334-336. 


INDEX.  529 

PARTIES  TO  CO:STRACTS—contmued. 
VII.  corporation,  aggregate — continued. 

or  unless  created  for  mercantile  purpose,  when  it  may 
make  mercantile  contracts  in  usual  manner,  336-342. 
VIII.  public  or  joint-stock  companies,  342-366. 
statute  regulating,  343,  344. 
nature  of,  as  unaffected  by  statute,  344,  345. 
joint-stock,  or  capital  of,  divided  into  shares,  345. 
common  law  of  ordinary  partnership  prevails  unless  ex- 
cluded by  deed  or  statute,  345,  346. 
transfer  of  shares  in,  347-349. 
shares  in,  not  within  Statute  of  Frauds,  129,  348. 
rights  and  liabilities  of  members  of,  how  arising,  349-356. 
as  to  bills  of  exchange,  351-355. 
as  to  borrowing  money,  355,  556. 
in  all,  objects  for  which   company  established  must  be 
adhered  to,  358. 

contracts  not  in  accordance  with  such  objects,  void, 
.  359. 
under  Companies'  Acts,  1862,  1867;  357-366. 
manner  of  contracting  of,  361,  362. 
attorney  authorized  under  seal  of,  may  execute  deed 
under  his  own,  362. 
bills  and  notes  of,  362,  363. 
remedies  against,  364. 
liabilities  of  shareholders  in,  on  winding  up,  364- 

366. 
rights  of  shareholders  in,  against  company,  365. 
liabihty  of  provisional  ofl&cers  of,  384. 
IX.  (a.)  agents,  366^45. 

contracts  by,  366.  » 

who  may  appoint,  367. 
agent  cannot  appoint  an  agent,  368. 
who  may  be,  369-373. 
under  Statute  of  Frauds,  371-373. 
how  appointed,  373-374. 
how  far  contracts  of,  bind  principal,  374-393. 
particular  and  general,  distinction  between,  where 

agent  exceeds  his  authority,  375.' 
examples  illustrating  distinction,  376-378. 
reason  of  distinction  between,  378,  379. 


530  INDEX. 

PARTIES  TO  CONTRACTS— continued. 
IX.  (a.)  agents — contimied. 

authority  of  general  agent  measured  by  extent  of 

usual  employment,  379-385. 
principal  bound  by  contract  of  agent  made  accord- 
ing to  usage,  385-389. 
but  not  if  usage  arises  after  the  transaction,  388. 
powers   of,  implied  from   capacity  in  which   agent 
acts,  389. 

factors,   brokers,    partners,    wives,    servants, 
&c.,  390. 
ratification,  390-392. 

notice  of  limited  or  discontinued  authority,  392. 
right  of  principal  to  take  advantage  of  contracts  by, 
394-400. 

where  known,  394. 

where  agent  contracts  as  principal,  395-400. 
right  of  third  party  to  elect  between  principal  and 

agent,  400^05. 
but  right  may  be  qualified  where  altered  state  of 
accounts  or  other  occurrence  makes  it  unjust  that 
election  should  be  made,  405-411. 
liabilities  of,  411,  412. 
(6.)  partners,  412-423. 

questions  between,  illustrate  law  of  agency,  412. 
mutual  rights  and  liabilities,  413. 
liabilities  of,  towards  third  person,  413-415. 
question    to  whom    credit  given,   when,  415- 

420. 
cause  of  action  must  arise  during  time  of  part- 
nership, 420. 
dormant,  ih. 
nominal,  421. 
notice  of  retirement  of  partner,  421. 

dissolution,.  422. 
liability  upon  bills,  423. 

fraudulent  contracts,  co-partner  not  liable  for, 
when,  421 
(c.)  brokers,  424-428. 

how  distinguished  from  factors,  424. 
insurance,  426-428. 


INDEX.  531 

PARTIES  TO  CONTRACTS— coH^mwed 
(d.)  factors,  424,  428-431. 

how  distinguished  from  brokers,  424. 
pledges  by,  429-431. 
(f.)  wife,  431-445.. 

binds  husband  on  ground  of  agency,  431. 
implied   authority  of,   when   living  with    husband,  to 
contract  for  necessaries,  434. 

unless  tradesmen  forbidden  to  trust,  434,  437, 

438. 
or  she  is  forbidden  to  get  goods  on  credit,  43S. 
what  are  necessaries   for,  while  living  with 
husband,  434-437. 
when  living  apart  from  husband,  to  contract  for 

necessaries,  438-445. 
where  separation  caused  by  his  fault,  439. 
by  mutual  consent,  440,  441. 
separated,  has  no  such  authority  where  sufficient  allow- 
ance, 440. 

nor  where  separation  not  by  his  fault  or  con- 
sent, 441. 
separated  from  husband,  what  are  necessaries  for, 
441-445.. 
PARTITIONS, 

must  be  by  deed,  34. 
PARTNERS,  412-423.     See  Parties  to  Contracts,  ix.  (b). 
PART  PAYMENT, 

under  Statute  of  Frauds,  128,  129.  ^S'ee  Statute  of  Frauds, 
Sec.  17. 

Statute   of  Limitations,   476-482.      See  Limitations, 
Statutes  of. 
takes  case  out  of  Statute  of  Limitations,  what,  476-482. 
mutual  settlement  may  amount  to,  478. 
verbal  admission  sufficient  proof  of,  482. 
PATENT  AMBIGUITY,  45. 

cannot  be  explained  by  verbal  evidence,  45,  46. 
PATENTS  FOR  INVENTIONS, 
assignable  only  by  deed,  35. 
PAYMENT.     See  Part  Payment. 
PENALTY, 

implies  prohibition,  229. 
53 


532  INDEX. 

POLICIES, 

wager,  248-252. 
POLICY  OF  THE  LAW,  223-225. 

PRINCIPAL  AND    AGENT,  366^45.     See  Parties  to  Con- 
tracts, IX. 
PROHIBITION, 

penalty  implies,  229. 

in  Revenue  Acts  avoids  contracts,  when,  232-234.  I 

PROMISE, 

to  answer  for  debt,  default,  or  miscarriage  of  another  must  be 
in  writing,  72,  73,  75,  95.     See  Guaranty. 

by  executor  or  administrator  to  answer  damages  out  of  own 
estate,  consideration  of,  72,  92. 

made  to  debtor  to  pay  his  debt,  104. 

ratification  of,  by  infant,  138-140,  302. 
PROMISEE, 

disadvantage  to,  a  consideration,  155,  156. 

consideration  must  move  from,  160. 
PROMISOR, 

benefit  to,  a  consideration,  155,  156. 
PROMISSORY  NOTES, 

consideration  presumed,  166. 

given  for  illegal  consideration,  270-272. 

infant  cannot  bind  himself  by,  294. 

given  to  wife  dum  sola.,  306. 

under  Companies'  Act,  1862,  362,  363. 
PROPOSAL, 

in  writing  signed,  if  accepted  by  parol,  sufficient  within  Statute 
of  Frauds,  89. 
PROSTITUTE, 

supplying  lodgings  or  clothing  to,  to  enable  her  to  carry  on  her 
practices,  illegal,  195,  196. 
PROVISIONAL  COMMITTEE,  384. 
PUBLIC  COMPANIES,  342-366.     See  Parties  to  Contracts, 

VIII. 

PUBLIC  DUTIES, 

contracts  inconsistent  with,  217. 
PUBLIC  POLICY, 

contracts  opposed  to,  void,  196. 

in  restraint  of  trade  are  opposed  to,  ih. 

but  partial  restraints  of  trade  are  legal,  197, 198. 


INDEX. 


533 


PUBLIC   VOLICY— continued. 

contracts  opposed  to,  what  are,  199. 

but  must  be  reasonable,  200. 
must  be  founded  on  consideration  even 
if  by  deed,  17,  207. 

but  adequacy  of  consideration,  can- 
not be  decided  by  court,  208,  209. 
in  restraint  of  marriage  are  opposed  to,  210. 
tending  to  separation  are,  ib. 
founded  on  existing  separation  not,  211. 
marriage  brocage  contracts,  212. 
contracts  obstructing  the  course  of  justice,  213-217. 

but  indictments  for  some  misdemeanors  may  be 
compromised,  215. 
contracts  inconsistent  with  public  duties,  217. 
to  indemnify  against  illegal  acts,  ib. 
maintenance  and  champerty,  218-220. 
contracts  with  alien  enemies,  220,  221. 

contravening  the  objects  of  Acts  of  Parliament, 
221-223. 

Apothecaries'  Act,  222. 
Winding-up  Acts,  223. 
policy  of  the  law,  223-225. 
KACES, 

horse,  239-243,  244. 
foot,  243,  244. 
dog,  ib. 

betting  on,  242,  244. 
RATIFICATION, 

of  promise  by  infant,  138-140,  302. 
of  contract  by  agent,  390-392. 
RECOGNIZANCES,  3. 

in  the  nature  of  a  statute  staple,  ib. 

between  the  Crown  and  subject,  ib. 

of  bail,  ib. 

registering,  4. 

scire  facias,  to  enforce,  4. 

within  what  time,  458. 
RECORD,  CONTRACTS  OF,  2,  3. 

statutes  staple  and  statutes  merchant,  3. 
recognizances,  ib. 


534  INDEX. 

RECORD,  CONTRACTS  0¥— continued. 
incidents  of,  4. 
prove  themselves,  ib. 
enforced  by  sci.  fa.,  ib. 
discharged  by  release,  ib. 
RELEASE, 

obligation  by  record,  discharged  by,  4. 
obligation  by  deed,  discharged  by,  29. 
REMEDY, 

on  contracts  by  deed,  35,  450. 

must  be  pursued  within  20  years,  36,  453,  454. 

by  means  of  mandamus,  when,  446-448. 

against  joint-stock  companies,  under  Companies'  Act,  364. 

ordinary,  at  law,  by  action,  448. 

scire  facias  the  remedy  when  contract  of  record,  449. 

action  of  debt  remedy  in   every  case  of  pecuniary  duty  from 

one  person  to  another,  449. 
action  of  covenant,  remedy  on  contract  by  deed,  450. 
assumpsit  remedy  on  simple  contract,  ib. 
action  of  account,  ib. 

must  be  pursued  within  times  of  limitation,  451.     See  Limi- 
tations, Statutes  of. 
REMUNERATED  and  UNREMUNERATED  AGENTS,  175. 
REPUDIATION, 

of  contract,  memorandum   containing,  may  satisfy   Statute  of 
Frauds,  137. 
REQUEST, 

when  previous,  required,  179. 

implied,  181-186. 
RESCINDING, 

contracts  under  Statute  of  Frauds  may  be  rescinded  by  parol. 

137.     See  Statute  of  Frauds. 
offer  may  be  rescinded  until  acceptance,  143-145. 
RESIGNATION  BONDS,  261-266. 
RESTRAINT  OF  TRADE, 

contracts  in,  20,  196-210.     See  Public  Policy. 
if  general,  void,  196. 
if  partial,  legal,  197. 
if  reasonable,  and  for  a  consideration,  ib. 
must  be  founded  on  consideration,  197,  207,  208. 
though  by  deed,  17,  207. 


INDEX.  535 

RESTRAINT  OF  TRADE— confmued. 

but  court  will  not  decide  upon  adequacy  of  con- 
sideration, 208,  209. 
instances  of,  held  good,  199, 200, 202, 204,  205,  209, 210. 

held  bad,  201,  203. 
unlimited  as  to  time,  199. 
unlimited  in  point  of  space,  203,  206. 
where  limited  in  point  of  space,  rule  for  measuring  dis- 
tance, 207. 
REVENUE  ACTS, 

when  prohibition  in,  makes  contract  illegal,  232-234. 
REVIVOR, 

writ  of,  453. 

requires  rule  or  order,  when,  ib. 
rule  to  show  cause,  when,  ib. 
RULE, 

for  execution  on  judgment,  453. 
SALE   OF    GOODS, 

for  £10  -or  upwards,  128-136.     See  Statute  op  Frauds, 
17th  Sec. 
SALES  ON  SUNDAY,  256-258. 
SCIRE  FACIAS, 

to  enforce  record,  4. 
on  recognizance,  limitation,  453. 
SEAL, 

contracts  under,  2,  5,  6. 

one  of  three  classes  of  contracts,  2. 
to  deeds,  6,  7. 

corporations  must  contract  under  common,  when,  333-342. 
not  necessary  to  contracts  of  company  under  Companies'  Acts, 
1862,  1867,  361. 
SEALING, 

essential  to  a  deed,  6. 
SECURITIES, 

for  gaming  consideration,  271,  272. 
SEDUCTION, 

past,  no  consideration  to  support  a  promise,  16,  195. 
bond  for  maintenance  founded  on,  good,  16. 
SEPARATION, 

contracts  tending  to,  210. 
founded  on  existing,  211. 


536  INDEX. 

SERA^ANT, 

where  service  of,  hired  for  a  year,  to  begin  at  a  future  time, 
writing  necessary,  123. 
SHARE, 

in  public  companies,  345. 
transferring,  347. 

not  within  Statute  of  Frauds,  129,  348. 
SHIP, 

conveyance  of  property  in,  when  to  be  in  writing  under  seal, 
35. 
SIGNATURE, 

not  necessary  to  a  deed,  5. 

of  party  to  be  charged  under  Statute  of  Frauds,  85.   See  Stat- 
ute OP  Frauds,  Sec.  4. 
does  not  matter  where  signature  placed,  86. 
of  party  to  be  charged  sufficient,  88,  89. 
of  party  to  be  charged  under  Sec.  17,  132. 
one  cannot  sign  for  the  other,  ih. 
of  agent  as  to  acknowledgment  of  specialty  debt,  458,  475. 

of  simple  contract  debt,  475. 
SIMONY,  258-266. 
SIMPLE  CONTRACTS, 
what  are,  38. 

difference  between,  and  contracts  by  deed,  ih.,  39. 
written  or  not  written,  difference  between,  ib. 
if  written,  proof  of,  39. 

must  be  proved  by  the  writing  only,  ih. 

reason  of  this  rule,  ih. 
cannot  be  altered,  added  to,  or  diminished  by  contem- 
poraneous words,  40. 
nor  by  a  supposition  of  its  meaning  on  which  the  parties   , 

have  acted,  43. 
but  may  be  shown  to  have  been  varied  by  parol  subse- 
quently, ih. 
but  not  where  the  law  requires  a  writing,  45. 
patent  and  latent  ambiguities  in,  45. 
may  be  qualified  by  usage  and  customary  incidents,  51 . 
usage  or  custom,  51,  52. 
customary  incidents  may  be  annexed,  52,  53,  55,  56, 

57. 
technical  or  local  terms  in,  60-65. 


INDEX. 


537 


SIMPLE  CONTRACTS— con^mned 
if  written,  proof  of — continued. 

but  if  the  meaning  be  plain  it  cannot  be  contradicted, 

64. 
evidence  of  usage  does  not  raise  a  conclusion  of  law  but 

of  fact,  67. 
court  to   construe  document  when  meaning  of  words 

ascertained,  ih. 
custom,  &c.,  does  not  apply  to  unusual  contracts,  ih. 
rules   as  to  Written  contracts  do  not  apply  unless  con- 
tract complete,  ih. 
writing  necessary  to  some,  70. 
Statute  of  Frauds,  70-138. 
objects  of,  71. 
4th  Section  of,  72.- 
•      17th  Section  of,  128. 

contracts  provided  for  in  4th  Section,  72,  73. 

consideration  must  appear  in  when,  73- 

76. 
expressly  or  by  implication,  76. 
except  in  cases  of  guaranties,  73,  75. 
all  the  other  terms  must  appear  in,  75. 
agreement  need  "not  be  contained  in  one  writing,  79. 
if  in  several  papers  they  must  be  connected  among  them- 
selves, 83. 
signature  of  party  to  be  charged,  85. 

if  party  intended   to  bind  himself  by  his  sig- 
nature, immaterial  where  he  signs,  86. 
if  party  to  be  bound  signs,   other  party  need 
not,  89. 
agreement  must  exist  before  action  brought  upon  it,  89. 
if  unwritten,  not  void,  but  no  action  can  be  brought 
on  it,  89,  90. 
both  parties  must  consent  to  the  same  thing,  141. 
mutuality  necessary  in,  142,  143. 
assent  must  be  to  precise  terms  offered,  143. 
when  offer  accepted  binding  on  both,  145. 
offer  may  be  rescinded  until  accepted,  143-145. 
require  a  consideration,  150. 
maxim  of  nudum  jiacfum,  152. 
reason  of  this  rule,  152. 


538  INDEX. 

SIMPLE  CO^TRACTS—continued. 
consideration  of,  155. 

general  definition,  155,  156. 

benefit  to  the  promisor  or   disadvantage  to  promisee, 

156,  157. 
must  move  from  promisee,  160. 
adequacy  of  consideration  not  important,  161-165. 
but  must  be  of  some  value,  165. 

but  bills  and  notes  always  presumed  to  be  on  considera- 
tion, 166,  167.- 
forbearance  a  consideration,  168-171. 
of  doubtful  claim,  171. 
of  unfounded  claim,  171,  172. 
trust  a  consideration,  174. 
remunerated  and  unremunerated  agents,  175. 
being  compelled  to  do  another's  duty  sufficient  consider- 
ation to  support  a  promise  to  indemnify,  177. 
executed  and  executory  considerations,  178,  179. 
former  requires  previous  request,  179. 

when  previous  request  implied,  181-186. 
where  one  is  compelled  to  do  another's 

'  duty,  182. 
wher6  benefit  of  consideration  adopted, 

184. 
as  in  case  of  goods  supplied   to   chil- 
dren, jb. 
if  the  adopter  had  power  to  accept  or 

refuse,  185. 
voluntary  performance  of  another's  duty, 
186. 
moral  consideration,  187. 
general  summary  as  to,  188,  189.  . 
promise,  189. 

that  which  the  law  implies  will  alone  be  supported  by 
an  executed  consideration,  190,  191. 
time  of  limitation  of  actions  on,  460-461.     See  Limitations, 
Statutes  of. 
SPECIALTY, 

debt  or  covenant  on,  must  be  brought  within  20  years  after 
cause  of  action  accrued,  454. 
SPECIALTY  CONTRACT,  2,  5-37. 


INDEX.  539 

SPECIFIC  PERFORMANCE, 

when  a  remedy  on  contract,  446. 
STAKEHOLDER, 

money  deposited  with,  when  recoverable  from,  247,  27<S.  271'. 
STATUTE,  CONTRACTS  ILLEGAL  BY,  228-269. 

are  so  whether  forbidden  expressly  or  by  implication,  228. 

penalty  implies  prohibition,  229 

immaterial  whether  forbidden  for  the  sake  of  the  revenue  or 

any  other  object,  232. 
but  illegality  incidental  to  contract,  does  not  avoid  it.  234. 
gambling,  238-248. 
horse-races,  239-244. 
betting  on  races,  242,  244. 
wagers  on  games,  243,  244. 
bets  not  on  games,  243-245. 

contracts  by  way  of  gaming  or  wagering  not  unlawful  at  com- 
mon law,  245. 
but  now  all  such  contracts  are  void  by  statute,  244-246. 
wager  policies,  248-252.     See  Insurance. 
stock-jobbing  contract,  void  as  a  wager,  245. 
contracts  of  worldly  business  on  the  Lord's  Day.  253-258. 
Sunday  sales,  256-258. 
simony,  258-261. 
resignation  bonds,  261-266. 
illegal  charges  on  benefices,  266. 
illegal  measures,  267,  268. 

bills  and  notes  and  other  securities  given  for  illegal  consider- 
ations, 270-272. 

for  gaming  consider- 
ations, lb. 
STATUTE  OF  FRAUDS,  70-138. 
objects  of,  71. 
4th  Section  of,  73. 

contracts  provided  for  in,  73,  74. 

when,  consideration  must  appear  in.  7.:i-76. 
expressly  or  by  implication,  76. 
except  in  case  of  guaranties,  73,  75. 
all  the  other  terms  must  appear  in,  76. 
need  not  be  contained  in  one  writing,  79. 
if  in  several,  they  must  be  connected    in 
sense  amon";  themselves,  83. 


540  INDEX. 

STATUTE  OF  YP.AV'DS—confimied. 
4th  Section  of — continued. 

signature  of  party  to  be  charged,  85. 

if  party  intended  to  bind  himself, 

immaterial  where  he  signs,  86. 
if  party  to  be  charged  sign,  suffi- 
cient, 89. 
agreement  must  exist  before  action  brought, 
ih. 

if  unwritten,  not  void,  but  will  not 
support  action,  89,  90. 
by  executors,  etc.,  to  answer  damages  out 
of  their  own  estate  must  be  in  writing, 
72,  92. 

consideration  necessary  in,  93-95. 
guaranty,  72,  73,  95-105. 

person  whose  debt,  &c.,  guaranteed, 

how  far  must  continue  liable,  96, 

100,  101. 

default  or  miscarriage  in  breach  of 

any  duty,  within  the  statute,  103. 

new  consideration  does  not  dispense 

.    with    necessity  of  writing,  101, 

102. 
the  promise  within  the  statute  must 
be  one  made  to  the  creditor,  103. 
consideration    of,  need    not    be    in 

the  writing,  75,  105. 
fraudulent  representations  not  with- 
in Statute  of  Frauds,  105. 
but  within  9  Geo.  4,  c.  14,  s.  6, 106. 
agreements  in  consideration   of  marriage, 

72,73,109-111 
contracts  for  sale  of  lands,  111. 

what  is  such  contract,  111-121. 
fructus  industriales,  114. 
emblements,  ih. 
timber,  115. 
fixtures,  &c.,  116. 
lodgings,  116. 
agreement  for  lease.  120. 


li 


INDEX.  541 

STATUTE  OF  YUAUDS—coiitmued. 
4th  Section  of — continued. 

right  of  action  only  affected,  119. 
contracts   not   to  be  performed    within    a 
year,  119-126. 

possibility  of  extending   beyond  a 
year  does  not  make  writing  neces- 
sary, 124. 
if  all  to  be  done  by  one  party  is 
done   within    the   year,  he    may 
sue  the  other  without  a  writing, 
125. 
shares  in  public  companies  not  within.  129. 
17th  Section  of,  128-136. 

sale  of  goods  for  price  of  £10  or  upwards,  ib. 

what  are  goods  within  this  section,  129. 

difference  between  this  section  and  4th,  129,  135, 

136. 
acceptalnce  of  part  payment,  giving  of  earnest,  128, 

129. 
contract  made  void  by  this  section,  how  far,  129-131. 
this  section  extended  to  goods  not  in  existence,  &c., 

131. 
and  to  goods  of  value  instead  of  price  of  £10,  ih. 
rules   as  to   the  written  memorandum   analogous  to 

those  under  4th  Section,  132. 
signature  of  party  to  be  charged,  ih. 
one  cannot  be  the  other's  agent,  ib. 
several  documents  may  be  read  together,  ib. 
all  the  terms  must  appear,  135. 
memorandum  may  be  sufficient  to  satisfy,  though  it  repudiates 

the  contract,  137. 
contracts  under,  may  be  rescinded  by  parol,  ib. 
shares  in  public  company  not  within,  129,  348. 
STATUTES, 

rule  of  construing  words  ejusdem  generis  in,  255,  256. 
STATUTES  OF  LIMITATION.  See  Limitations,  Statutes  op. 
STATUTES  MERCHANT, 
contracts  of  record,  3. 
STATUTES  STAPLE, 

contracts  of  record,  ib. 


542  INDEX. 

STATUTE  OF  USES,  16. 
STOCK-JOBBING, 

Acts  now  repealed,  253,  n.  (a). 

but  contract  by  way  of,  may  be  void  as  a  wager,  245,  246. 
SUNDAY  SALES,  256-258. 
SURRENDER 

of  interests  in  lands  must  be  by  deed,  when,  34. 
TECHNICAL  TERMS, 

explained  by  parol,  60-65. 

meaning  of,  may  be  for  jury,  484,  486. 
TERMS, 

technical  or  local,  explained  by  parol,  60-65. 

meaning  of,  may  be  for  jury,  484,  486. 
TIMBER, 

contract  for  sale  of,  115. 
TORTS  AND  CONTRACTS,  1. 
TRADE, 

contracts  in  restraint  of,  19,  196-210.     See  Public  Policy; 
Restraint  op  Trade. 

infant  cannot,  293-297. 
TRUST, 

a  consideration,  174. 
UNREMUNERATED  AGENTS,  175. 
UNWRITTEN  SIMPLE  CONTRACT, 

difference  between,  and  written,  39,  70. 
USAGE, 

may  qualify  written  contracts,  51-66. 

parol  evidence  admissible  to  prove,  51,  55. 

evidence    of,    does    not    raise    a    conclusion    of    law    but    of 
fact,  67. 

principal  bound  by  contract  of  agent  according  to,  385-388. 

but  it  must  be  contemporaneous,  388. 

if  deviated  from,  principal  not  bound,  388,  389. 
USES,  STATUTE  OF,  16. 
USURY  LAWS, 

now  abulished,  238  n.  (o.) 
VALUE, 

consideration  must  be  of  some,  165. 

of  £10,  sale  of  goods  of,  131,  132. 
VERBAL  EVIDENCE, 

cannot  vary  written  contract,  39,  41. 


INDEX.  543 

WAGERING, 

contracts  by  way  of,  not  unlawful  at  common  law,  245. 
but  void  by  statute,  244. 
WAGER  POLICIES,  248-252. 
WAGERS,  242-247. 

WIFE,  304-317,  431-445.    See  Parties  to  Contracts,  ii.,  ix.  (e). 
WORDS, 

to  be  understood  in  ordinary  sense,  506,  507. 
WRITING, 

sealed  and  delivered  is  a  deed,  5. 

on  paper  or  parchment,  essential  to  a  deed,  ih. 

where  necessary,  subsequent  variation  by  parol  not  allowed, 

43. 
contract  for  the  purchase  of  land,  must  be  in,  72,  73,  111. 
written  contracts  must  be  proved  by,  39. 
necessary  to  some  simple  contracts,  70. 
agreement  need  not  be  contained  in  one,  79. 

if  in  several,  must  be  connected  among  themselves, 
.  83,  84. 
not  dispensed  with  by  new  consideration,  101,  102. 
contracts  not  to  be  performed  within  a  year,  must  be  in,  72, 

121. 
ratification  of  promise  by-  infant  must  be  in,  138,  302. 
contracts  of  insurance  must  be  in,  or  printed,  140. 
promise  to  pay  debt  barred  by  Statute  of  Limitations,  must  be 
in,  141,  458,  4GG,  467. 
WRIT  OF  REVIVOR,  453. 
WRITTEN  SIMPLE  CONTRACTS, 

difference  between,  and  not  written,  39,  70. 
proof  of,  39.     See  Simple  Contracts. 


I 


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